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Thursday, September 18, 2014

Suppression ordered where search based on a hunch State v ROWSON,

Suppression ordered where search based on a hunch
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMIL W. ROWSON,

Defendant-Appellant.
____________________________
August 15, 2014 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-01678-12T4



NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

Submitted April 29, 2014 - Decided

Before Judges Hayden and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 11-08-00888.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, on the brief).

PER CURIAM

Defendant Jamil W. Rowson appeals from the Law Division's October 5, 2012 final judgment of conviction, which the court entered after defendant pled guilty to one count of second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2). At the time defendant entered his guilty plea, he specifically reserved his right to appeal the court's denial of his motion to suppress evidence. In exchange for his plea, the State agreed to the dismissal of the other two counts of the indictment, which charged defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-1(a)(1), and second-degree conspiracy to possess with intent to distribute a CDS (cocaine), N.J.S.A. 2C:5-2, 35-5(a)(1), -5(b)(2). The State further agreed to recommend that the court sentence defendant as a third-degree offender to a term of three years' imprisonment. The court later sentenced defendant in accordance with that recommendation.
Defendant pled guilty after the court denied defendant's motion to suppress "evidence seized on April 7, 2011, during the stop of a vehicle in which [d]efendant was a passenger[,]" for the reasons stated in the court's July 31, 2012 written "Statement of Reasons." Before entering the order and issuing its decision, the court conducted an evidentiary hearing at which the State presented the testimony of New Jersey State Trooper Steven Spitaleri. Defendant did not testify or produce any witnesses. On appeal, defendant challenges the court's decision and argues:


POINT I

THE EVIDENCE AGAINST MR. ROWSON MUST BE SUPPRESSED BOTH BECAUSE OFFICER SPITALERI LACKED SUFFICIENT SAFETY REASONS TO ASK MR. ROWSON OUT OF THE CAR, AND BECAUSE THE SUBSEQUENT ONE HOUR STOP WAS NEITHER REASONABLE NOR MINIMALLY INTRUSIVE.

A. Officer Spitaleri Was Not Justified In Asking Mr. Rowson To Exit The Vehicle.

B. Observations of Nervousness In Addition To Allegedly Conflicting Stories May Contribute To, But Are Not Sufficient To Find, A Reasonable And Articulable Suspicion Of Criminal Activity.

C. The Totality Of The Circumstances Did Not Justify Such A Lengthy and Intrusive Stop.

POINT II

THE EVIDENCE AGAINST MR. ROWSON MUST BE SUPPRESSED BECAUSE MR. WERTZ'S CONSENT WAS INVOLUNTARY.

POINT III

THE STATE HAS NOT DEMONSTRATED THAT THE FRUIT OF THE SEARCH WOULD HAVE BEEN DISCOVERED INEVITABLY ABSENT THE ILLEGAL SEARCH.

In opposition, the State argues that "the trial court correctly denied defendant's motion to suppress [as t]he police had reasonable suspicion to ask defendant-passenger to exit the car and conduct a search of the car after obtaining valid consent, and the overall time of the stop was reasonable under the circumstances." We have considered these arguments in light of the record and we now reverse, vacate defendant's conviction, and remand for a new trial.
The facts found by the court at the evidentiary hearing it held established that on April 7, 2011, at 7:19 p.m., Spitaleri pulled over the vehicle in which defendant was a passenger while riding on Interstate Highway 80. Seth Wertz was driving the vehicle and Spitaleri observed him failing to maintain his vehicle in the marked lanes.
Spitaleri has been a "[f]ield [o]perations, [r]oad [t]rooper" with the New Jersey State Police for the past five years. Before assuming his current position, Spitaleri received training at the New Jersey Police Academy in, among other subjects, "moving and non-moving" traffic violations under New Jersey statues, in "search and seizure," and in matters pertaining to CDS. He is also certified as a "Drug Recognition Expert," and was previously part of "the State Police Street Gang Unit, which is involved with undercover narcotics transactions from vehicles, the movement of narcotics and narcotic activity." During the prior three years, he had been patrolling Route 80 in the same area where he stopped the subject vehicle, and he had conducted seventy-five to 100 stops that resulted in the discovery of CDS.
Spitaleri approached Wertz and made several observations about his appearance, and became suspicious that Wertz and defendant were involved in some type of criminal activity, especially because Route 80 was known to the officer as a corridor for drug trafficking and other crimes. Wertz was "extremely nervous[,] noticeably sweating and visibly shaking[,]" and unable to maintain eye contact with the officer. Wertz gave Spitaleri his Pennsylvania license and the officer determined that it was suspended. After making these initial observations, the officer believed that Wertz was driving while under the influence of drugs or alcohol, so he administered field sobriety tests, which Wertz passed. While this transpired, defendant remained seated in the vehicle.
After administering the field sobriety tests, Spitaleri did not arrest Wertz but advised him of his Miranda1 rights, and told him that he had "a reasonable articulable suspicion that there is something funny going on here." He interrogated Wertz outside defendant's presence about his and defendant's travels. According to the officer:
[Defendant] had contacted [Wertz] the day before [to] give him a ride to New York to drop off his girlfriend . . . [and that] when they left Pennsylvania [defendant] and his girlfriend [were in the car with him.]

. . . Wertz [stated that] he [has known defendant] over a couple of months . . . [b]etween a couple of months and a year. I then spoke to Mr. Wertz about who was in the vehicle with him, and [Wertz] said [defendant] and his girlfriend. I then asked Mr. Wertz if he knew [defendant's] last name and he just knew him as "Mel." He didn't know [defendant's] last name.

And then I asked [Wertz] if he was in contact with [defendant] the whole day and [Wertz] said up until . . . [defendant's] girlfriend was dropped off.

The officer then removed defendant from the car, advised him of his Miranda rights, and interrogated defendant about his trip with Wertz. As Spitaleri explained, like Wertz, defendant was not "exactly" under arrest but was being "detained," so that if defendant tried to leave the scene of the stop, Spitaleri would have apprehended him. Spitaleri explained why he wanted to speak to defendant:
I just wanted to speak with [defendant] to clarify just Mr. Wertz's story and that's when the conflicting statements came.

. . . .
The conflicting statements were that, the first one that he called . . . Mr. Wertz the morning of the stop because he missed the bus. And then Mr. Wertz stated that that he had – I mean [defendant] stated that he had his two kids – that he brought his wife and two kids from Pennsylvania and dropped them off in New York.

Spitaleri testified that defendant was polite. He did not describe him as being nervous as he did when testifying about Wertz. He pointed out that defendant did not have any identification with him on that day, nor did he know Wertz's last name. Spitaleri also determined that defendant had "felony convictions and he had served . . . prison terms . . . for narcotics . . . and weapons possession." Also, he described how defendant misspelled his own name. According to Spitaleri, the spelling "was off a letter," but the officer was able to eventually determine that defendant's license was suspended. After speaking to defendant, Spitaleri went back to Wertz to confirm the identities of everyone who was in the car with them that day. Wertz told the officer it was only defendant and his girlfriend.
The combination of Spitaleri's training; his familiarity with Route 80; the inconsistent statements; Wertz's nervous demeanor; defendant's inability to spell his name correctly; and both men being unlicensed, caused Spitaleri to become more suspicious. Spitaleri believed that he had a "reasonable articulable suspicion to ask for consent" to search the vehicle. If he did not have this suspicion, because both Wertz and defendant did not have valid licenses, the "vehicle would have been impounded, and both [of them] would have been relayed off . . . the exit to a safe location to be picked up or to make alternate plans for themselves."
The officer then followed his department's standard operating procedure to obtain approval from his superior before asking Wertz to consent to the search. Included in the information that Spitaleri relayed to his superior was the fact that a third party owned the car Wertz was driving. According to the officer, Wertz told him that the car belonged to Wertz's girlfriend and that he used her car instead of his own "because it was better on gas miles."2 Ultimately, Spitaleri obtained approval to ask Wertz for his consent to search the vehicle.
Approximately one hour transpired from the time of the initial stop to the time when the officer obtained that approval. Spitaleri then read a State Police "Consent to Search Form" to Wertz before searching the vehicle. He did not have Wertz sign it before conducting the search but, rather, waited until later, when Wertz was arrested and at police headquarters "[b]ecause due to safety reasons, we're not going to give somebody a pen or somebody else anything on a stop when we are dealing with them . . . [b]ecause [i]t could be used as a weapon." After Spitaleri read and showed Wertz the form, "[h]e verbally agreed [to] the search of the vehicle." According to Spitaleri, Wertz initially responded by saying, "I ain't got nothing in there, I ain't worried about it." Spitaleri responded by asking Wertz, "So you grant it?" He did so because he "[couldn't] take that as an answer, so that's why [Spitaleri] asked him, is that you giving permission to consent, and that's when [Wertz] said 'yeah.'"
The search ultimately revealed cocaine stashed inside a cigarette box located "on the passenger-side visor[ a]nd, behind the front-passenger seat on the back floor[3] was . . . a shoebox, [with] a plastic bag containing 320 decks of CDS heroin." The search also disclosed a vial containing marijuana which "was found outside the vehicle . . next to where [defendant] exited the vehicle." According to Spitaleri, defendant "took ownership to" the vial of marijuana. Once Spitaleri discovered the various substances, he arrested both Wertz and defendant. The officer stated that defendant initially resisted the arrest as he claimed that "he had nothing to do with it."
We begin with a recognition that our scope of review varies depending upon whether the issue raised on appeal concerns findings of fact or, alternatively, conclusions of law. As to the former, we must uphold the factual findings and credibility determinations of the trial judge if they are supported by "sufficient, credible evidence," State v. Yohnnson204 N.J. 43, 62 (2010), and "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson42 N.J. 146, 161 (1964). Still, if the trial court's findings are so clearly mistaken or unwarranted "that the interests of justice demand intervention and correction," then the Court may review the record "as if it were deciding the matter at inception and make its own findings and conclusions." Id. at 162. Finally, we "owe[] no deference to the trial court in deciding matters of law." State v. Mann203 N.J. 328, 337 (2010) (citing State v. Ghandi201 N.J. 161, 176 (2010)).
In near-identical language, both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey State Constitution guarantee "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and provide that "no [w]arrants shall issue, but upon probable cause." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Accordingly, "[o]ur constitutional jurisprudence expresses a clear preference for government officials to obtain a warrant issued by a neutral and detached judicial officer before executing a search." State v. Edmonds211 N.J. 117, 129 (2012) (citing State v. Frankel179 N.J. 586, 597-98, cert. denied543 U.S. 876125 S. Ct. 108160 L. Ed.2d 128 (2004)). "[S]earches and seizures conducted without warrants issued upon probable cause are presumptively unreasonable and therefore invalid." State v. Elders192 N.J. 224, 246 (2007). For that reason, "the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure 'falls within one of the few well-delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Pineiro181 N.J. 13, 19-20 (2004)).
Consent is a well-recognized exception to the Fourth Amendment's search warrant requirement.Schneckloth v. Bustamonte412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36
L. Ed.2d 854, 858 (1973). However, "consent searches under the New Jersey Constitution are afforded a higher level of scrutiny." State v. Carty170 N.J. 632, 639, modified on other grounds174 N.J. 351 (2002). Under Article I, paragraph 7 of the New Jersey Constitution any consent given by an individual to a police officer to conduct a warrantless search must be given knowingly and voluntarily. Ibid.. The burden is on the State to show that the individual giving consent knew that he or she "had a choice in the matter." Ibid. (quoting State v. Johnson68 N.J. 349, 354 (1975)). For that reason, the person giving consent must first be advised of his right to refuse. Johnson,supra, 68 N.J. at 353-54.
More pertinent here, when police request consent to search during a motor vehicle stop, they must have a reasonable and articulable suspicion that the search will produce evidence of criminal wrongdoing. Cartysupra, 170 N.J. at 635; State v. Thomas392 N.J. Super. 169, 188 (App. Div.), certif. denied192 N.J. 597 (2007). That standard has been defined as "a particularized and objective basis for suspecting the person stopped of criminal activity[,]" and is a far lower standard than probable cause. State v. Stovall170 N.J. 346, 356 (2002) (internal quotation marks and citation omitted).
If a police officer has a reasonable and articulable suspicion that a driver or passenger has engaged in, or is about to engage in, criminal activity, the officer may ask the driver to consent to a search of the vehicle. Carty,supra, 170 N.J. at 647. Under such circumstances, when a driver knowingly and voluntarily consents, the ensuing warrantless search does not violate Article 1, paragraph 7 of the New Jersey Constitution. Id. at 638-39.
As the Court explained in Cartysupra, once a car is stopped, and a police officer seeks consent to search the vehicle for reasons unrelated to the motor vehicle violation, the unique nature of a roadside detention requires a reasonable and articulable suspicion that a different crime has been or will be committed:
A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed. Once a lawful stop is made, the subsequent reasonable detention of the occupants of the motor vehicle constitutes a seizure. Such reasonable seizures, however, are permissible.

Although stopping a car and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment, the governmental interest in investigating an officer's reasonable suspicion, based on specific and articulable facts, may outweigh the Fourth Amendment interest of the driver and passengers in remaining secure from the intrusion.

The fact that the motorist already has been detained at the point when an officer asks for consent to search is not dispositive of whether a suspicionless search should be allowed to continue. Because the motorist cannot leave the area before the search is completed, unless it is terminated earlier, the detention associated with roadside searches is unlike a mere field interrogation where an officer may question an individual without grounds for suspicion. Roadside consent searches are instead more akin to an investigatory stop that does involve a detention. Such a stop traditionally has required reasonable and articulable suspicion.

[Id. at 639-40 (internal quotation marks and citations omitted).]

Whether a reasonable and articulable suspicion exists depends upon the totality of the circumstances.Pineirosupra, 181 N.J. at 22. No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity. Such a determination can be made only through a sensitive appraisal of the circumstances in each case. In each case, the reasons for such particularized suspicion will be given careful scrutiny by the court. However, "[a] seizure cannot – we emphasize cannot – be justified merely by a police officer's subjective hunch." Id. at 27 (quoting State v. Davis104 N.J. 490, 505 (1986)).
Likewise, whether a defendant's consent to a warrantless search was knowingly and voluntarily given depends upon the totality of the circumstances. See State v. King44 N.J. 346, 352 (1965). Some factors suggesting that a defendant's consent was coerced are: the defendant consented after being arrested, denying guilt, or initially refusing to give consent; the search resulted in seizure of contraband the defendant knew would be discovered; and the defendant consented while handcuffed. Id. at 352-53. Factors showing that consent was voluntarily given include that a defendant "had reason to believe that the police would find no contraband[;] admitted his guilt before consent[; or] affirmatively assisted the police officers." Id. at 353.
However, "[i]n the context of motor vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume that the individual feels compelled to consent." Cartysupra, 170 N.J. at 644. "Extended detentions and questioning regarding issues not related to the reason for the stop" constitute "[c]onsent that is the product of official intimidation or harassment" which invalidates any consent given by the detained and interrogated motorist. Id. at 645. For this reason, in Cartysupra, the Court held:
[C]onsent searches following a lawful stop of a motor vehicle should not be deemed valid . . . unless there is reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity. In other words, we are . . . holding that unless there is a reasonable and articulable basis beyond the initial valid motor vehicle stop to continue the detention after completion of the valid traffic stop, any further detention to effectuate a consent search is unconstitutional. A suspicionless consent search shall be deemed unconstitutional whether it preceded or followed completion of the lawful traffic stop. The requirement of reasonable and articulable suspicion is derived from our State Constitution and serves to validate the continued detention associated with the search. It also serves the prophylactic purpose of preventing the police from turning a routine traffic stop into a fishing expedition for criminal activity unrelated to the stop.

[Id. at 647 (emphasis added).]

In Carty, the Court applied that standard to an officer's reliance on a defendant's appearing nervous and held that it did not provide sufficient grounds for "the reasonable and articulable suspicion necessary to extend the scope of a detention beyond the reason for the original stop." Id. at 648. However, nervousness may be considered as a factor among others when determining whether a reasonable articulable suspicion exists that other crimes have occurred or are about to occur. Stovallsupra, 170 N.J. at 367-68.
"'[A] police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Locurto157 N.J. 463, 470 (1999) (quoting State v. Smith306 N.J. Super. 370, 380 (App. Div. 1997)). "If, during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances 'give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'" State v. Dickey152 N.J. 468, 479-80 (1998) (alteration in original) (quoting United States v. Johnson58 F.3d 356, 357-58 (8th Cir.), cert. denied516 U.S. 936116 S. Ct. 348133 L. Ed.2d 245 (1995)). However, "a police officer may not ask for consent to search a lawfully stopped vehicle or its occupants unless the officer has 'a reasonable and articulable suspicion' that the occupants are engaged in criminal wrongdoing." Elderssupra, 192 N.J. at 230 (citing Cartysupra, 170 N.J. at 635). "Reasonable suspicion" means that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Barrow408 N.J. Super. 509, 517 (App. Div.) (quoting Terry v. Ohio392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.2d 889, 906 (1968)) (internal quotation marks omitted), certif. denied200 N.J. 547 (2009). "Reasonable suspicion" is "less than proof . . . by a preponderance of evidence," and "less demanding than that for probable cause," but must be something greater "than an inchoate or unparticularized suspicion or hunch." Ibid. (quoting United States v. Sokolow490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed.2d 1, 10 (1989)) (internal quotation marks omitted).
"A finding of reasonable and articulable suspicion of ongoing criminality" is determined by objective "cumulative factors in a totality of the circumstances analysis." Elderssupra, 192 N.J. at 250. So, while an anonymous tip may be insufficient by itself to justify a request for consent, State v. Matthews398 N.J. Super. 551, 559-60 (App. Div.), certif. denied196 N.J. 344 (2008), cert. denied555 U.S. 1159129 S. Ct. 1037173 L. Ed.2d 480(2009), that information must be considered together with all other facts of record, taking into account the standard indicia of reliability as well as the extent of independent police corroboration and degree of predictive accuracy, in determining whether reasonable suspicion exists. Alabama v. White496 U.S. 325, 332, 110 S. Ct. 2412, 2417, 110 L. Ed.2d 301, 310 (1990); Florida v. J.L.529 U.S. 266, 270, 120 S. Ct. 1375, 1378, 146 L. Ed.2d 254, 260 (2000); State v. Amelio197 N.J. 207, 212 (2008), cert. denied556 U.S. 1237129 S. Ct. 2402173 L. Ed.2d 1297(2009); State v. Rodriguez172 N.J. 117, 127-28 (2002).
Although a judge should "ascribe sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise," State v. Arthur149 N.J. 1, 10 (1997), a reasonable and articulable suspicion is not subject to a singular rule and must not "'be justified merely by a police officer's subjective hunch.'" Elderssupra, 192 N.J. at 247 (quoting Pineirosupra, 181 N.J. at 27).
Turning to the issues raised on appeal, the primary question is whether there was a sufficient factual basis for a reasonable and articulable suspicion of criminal activity to justify Spitaleri's search of the vehicle in which defendant was a passenger. In holding that there was a sufficient basis, the trial court relied on our opinion inThomassupra, in denying defendant's motion. The facts in that case, however, were different than the instant matter. We summarized the facts in Thomas as follows:
The charges against defendant arose out of an incident that occurred on . . . a four-lane, divided highway with a grass median. Detective Louis Fundora was driving east on Route 36 in an unmarked car. Fundora observed a Mazda stopped in the westbound passing lane. He saw one man standing at the car and two men walking toward the Mazda in the eastbound lanes. By the time Fundora turned around and approached the Mazda in the westbound lane, all three men were in the car and driving away. Fundora stopped the Mazda on the westbound shoulder.

None of the men in the car had any identification. The driver identified himself as Najee Standard, gave an address and date of birth, all of which proved false. The front seat passenger identified himself as Vernon Valentine and produced a car rental agreement in that name. He also produced four traffic summonses, two in the name of Vernon Valentine and two in the name of Tyrone Whitley, but claimed he didn't know Whitley. Valentine was later identified as Whitley.

Defendant, a back seat passenger, gave his correct name but had no identification and persisted in talking on a cell phone during the stop. After learning that the driver had given incorrect identification, that Valentine was in possession of summonses issued to Tyrone Whitley and that defendant had no identification, Fundora asked Valentine to sign a consent to search because the car was rented in his name. Valentine agreed and a substantial amount of cocaine was recovered.

[392 N.J. Super. at 175-76 (emphasis added).]

Based on those facts we affirmed the trial court's decision to deny Thomas' motion to suppress because
the evidence demonstrated that Fundora had more than mere nervousness to support a reasonable and articulable suspicion that the occupants were already--or about to be--engaged in criminal activity.

The trial court found that

Det. Fundora had ample, reasonable and articulable suspicion for requesting a consent to search . . . [a]nd I've indicated I found him to be credible. But in short, the failure of the individuals to produce identification, the story by Mr. Standard that he was not the original driver, two males walking to a car that was stopped in a fast lane, the production of two sets of summonses, that is for two different individuals from a glove box of a rented car, the fact that Mr. Vernon Valentine who appeared, who looked like a Mr. Whitley did not know who Mr. Whitley was, and did not know how those summonses had gotten into the car.

The fact that the automobile in question was a rented vehicle, the fact that the suspects were all nervous[,] [t]he fact that there appeared to be an argument in the car, the fact that one suspect was sweated and agitated[,] [and] [t]he fact that another suspect appeared to be on a cell phone making a call . . . provided the detective with a reasonable and articulable suspicion.

[Id. at 188-89 (emphasis added).]

Here, unlike Thomas, Spitaleri did not have a sufficient basis to support a reasonable and articulable suspicion to justify his request for a consent to search the vehicle. While Spilateri may had a hunch "something funny was going on," the combination of Wertz's nervousness, his and defendant's inconsistent story, and the fact that they were unlicensed, did not provide a particularly objective basis for suspecting Wertz and defendant were engaged in criminal activity.
Even if it did, it cannot be said that the consent Spitaleri obtained from Wertz was the product of his own free will. Rather, after considering the extraordinary length of time that transpired from the moment of the stop to the point of obtaining Wertz's equivocal verbal consent, it was at least likely that Wertz's consent was the result of Spilateri's extended detention of the two men and his questioning regarding issues not relative to his stopping Wertz for driving erratically. Once the officer's valid suspicion that Wertz was intoxicated had been laid to rest by the sobriety tests, and he determined both drivers were unlicensed, the officer had no reason to continue to interrogate and detain Wertz or defendant. He simply could have made arrangements for the vehicle's storage, State v. Slockbower79 N.J. 1, 9 (1979), or he could have secured the vehicle and attempted to obtain a warrant. Under the circumstances presented here, the officer's search was unjustified.
Reversed and remanded for further proceedings. We do not retain jurisdiction.

certify

1  Miranda v. Arizona384 U.S. 43686 S. Ct. 160216 L. Ed.2d 694 (1966).
2  The police were able to contact the girlfriend who confirmed that Wertz was driving her vehicle with her consent.

3  He later clarified that it was underneath the front-passenger seat.

Text message was not harassment for domestic violence

Text message was not harassment for domestic violence
M.D.,

Plaintiff-Respondent,

v.

B.P.,

Defendant-Appellant.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-04536-11T1
Unpublished.) RECORD IMPOUNDED

____________________________________
August 13, 2014

Submitted January 15, 2014 - Decided

Before Judges Grall and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2010-12.

B.P., appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant B.P., who represents himself, appeals from the May 9, 2012 final restraining order (FRO) that a Family Part judge entered against him following a hearing under the Prevention of Domestic Violence Act (DVA), N.J.S.A.2C:25-17 to -35. Having considered defendant's arguments in light of the trial transcript and controlling law, we reverse and remand for a new hearing.
During a relationship that lasted from August 2008 through December 2011, plaintiff and defendant had a daughter, who is now five years old. In the third week of December 2011 defendant moved out of the room where he and plaintiff lived, which they were renting from her uncle. In March 2012, defendant filed a complaint seeking custody of their daughter. The next month, April 2012, plaintiff filed a domestic violence complaint against defendant. In the complaint, plaintiff alleged defendant had harassed her by sending her an excessive number of text messages on April 22 and 24, 2012.
According to the complaint, plaintiff was staying at a "protected address" and defendant's text messages said he knew where she was, which made her nervous because she feared him. Although plaintiff had asked defendant to stop calling, texting, and attempting to reconcile, defendant did not stop. Instead, he began to send long messages accusing her of having relationships with men and women. The complaint further alleged:
[I]n March, the [plaintiff] was walking to the Police Dept[.] to drop off their [daughter.] [T]he [defendant] was stalking her[.] [H]e got out of the car . . . and took the child[.] [T]here were no fights but [plaintiff] was surprised to see him [] because he is not supposed to know her whereabouts. Now the [defendant] is sending her messages which states [sic] he knows her[] home address, he has friends that are watching her, because they live close to her. During the last FRO[] hearing the [defendant] was told to leave the [plaintiff] alone, and to keep the communication limited to their [daughter]'s well-being only[.] [T]he [defendant] has refused to follow said recommendation[.] This is making the [plaintiff] uncomfortable and afraid.
The complaint referred to a hearing concerning a previous domestic violence complaint that had ultimately been dismissed. Based on the new complaint, the court issued a temporary restraining order and scheduled a final hearing for May 3, 2012.
Plaintiff and defendant were the only witnesses to testify at the hearing. Plaintiff testified that she had to leave the room she was renting from her uncle because defendant would not leave her alone. Because defendant was bothering other people who lived at the same location, and had threatened to take their daughter away from plaintiff, plaintiff spoke with someone employed by the Division of Youth & Family Services (the Division),1 who helped her move to a confidential location. Plaintiff moved to the location in late February or early March, 2012.
Around the time plaintiff moved to the confidential location, defendant filed a complaint seeking custody of their daughter. The following month, plaintiff filed the domestic violence complaint that resulted in the FRO at issue in this appeal.
Although plaintiff alleged that defendant had harassed her on April 22 and 24 by sending her excessive text messages, she admitted at trial that on April 20, she initiated communications with defendant by sending him a text message to come and get their daughter. Defendant responded with a text message and the parties continued to exchange text messages throughout the day. The following day, April 21, they exchanged no messages. The next day, April 22, was the first of the two days on which, as alleged in the complaint, defendant began to harass plaintiff by sending her excessive messages.
On April 22 plaintiff and defendant separately drove to a police station where plaintiff dropped off her daughter and defendant picked her up. Defendant said he wanted to speak to plaintiff about the custody case. Because plaintiff was in a taxicab and had to leave, she told defendant to call her later. That night, between 7:00 and 8:32, defendant received the six messages that she claimed were harassing.
Although plaintiff had her cell phone with her when she testified, and though she had not erased the text messages that she claimed constituted harassment, neither the lawyers nor the court had her read all of the messages into the record. Consequently, the content of some of the messages is not entirely clear. In the first message, defendant said that he was waiting for plaintiff, that he had tried to call her, and she did not answer. Although the timing is uncertain, it appears that plaintiff and defendant spoke after defendant sent the first message. During the conversation, defendant discussed reconciling with plaintiff. Plaintiff said she would not go back with him, and he said he would change, but she rejected his offer to reconcile. She said that she had to leave and told him not to bother her anymore. Following the phone call, defendant sent the remainder of the text messages plaintiff complained about.
Plaintiff testified that in the other messages defendant said he knew where she was, discussed reconciliation, and accused plaintiff of going out with men. Defendant next sent her a text saying that when he could not sleep, he says "whatever comes to mind." Those messages were followed by one accusing plaintiff of going out with women, and others accusing her of drinking alcohol or doing drugs. He also said that he had acquaintances who knew where she lived. Plaintiff responded to the messages by telling defendant to leave her alone.
The next day, April 23, plaintiff received three messages from defendant between 10:16 in the morning and 7:53 in the evening. She did not allege in her complaint that those messages were part of defendant's harassment of her. In the messages, defendant stressed the urgency of plaintiff calling him about custody because the following day he was going to see his attorney. He also "placed another message telling [plaintiff] that . . . the daughter of the . . . man that lived next door was . . . sending greetings."
On April 24, the second day plaintiff claimed to have received harassing text messages, defendant sent her a message at 5:00 in the morning. In that message, defendant said that he knew everything about plaintiff. Later that day, defendant sent either two or three other messages, one at 10:13 a.m. and one at 6:39 p.m. In the morning message, defendant asked plaintiff if their daughter could call him, and asked plaintiff to call him back; otherwise, he would make a report to the Division. Plaintiff explained that the messages made her anxious and nervous, and that she was fearful because of the way defendant was acting.
During both direct and cross-examination, plaintiff testified that at some point on April 22, defendant sent her a picture of the woman he said he intended to marry. He followed up with a message telling plaintiff the woman's name. Defendant also told her that though the woman was a very lovely person, he wanted plaintiff to know that she was the first love of his life. Then defendant said he wanted to talk to plaintiff about reaching a custody agreement so that they did not have to go to court.
Plaintiff conceded on cross-examination that defendant never sent her a text saying that he knew where she was staying. She claimed, however, that defendant made the statement in a phone call. Plaintiff was also unable to point to a text message in which defendant accused her of having relationships with men and women. When confronted with the actual text messages and the absence of that accusation, plaintiff changed her testimony and said defendant had made the accusations either in phone calls or when they met to exchange their daughter.
Plaintiff also testified about earlier incidents of alleged domestic violence between her and defendant, some of which formed the basis for her first complaint. She explained that she had filed for a restraining order in February 2012 because defendant was "always bothering [her]" and told her things that made her afraid. He said he was going to take their daughter away and made threats based on plaintiff's immigration status. Defendant also texted her in March 2012; he told her that one of his friends had said she was living in a shelter. Plaintiff further described an incident that took place four weeks before the FRO hearing. She said that when she went to pick up her daughter from defendant at the police station, he told her that she "was going to cry tears of blood and [she] told him to let a judge decide that."
Defendant testified that he and plaintiff had once separated in November 2011 then reconciled after communicating through text messages and by telephone. After they separated permanently, plaintiff filed a domestic violence complaint against him. That complaint was dismissed in March 2012. Following the dismissal of that complaint, defendant no longer wanted to communicate with plaintiff and asked that they exchange custody of their daughter at a police station or a courthouse. Between the time the first domestic violence complaint was dismissed, and April 24, when plaintiff filed the second domestic violence complaint, the two were getting along and communicating about their daughter.
Defendant claimed that he sent a picture of the woman he intended to marry to plaintiff on April 22 so that their daughter could see the woman and understand that they would be spending time together. Defendant intended to communicate that even though he was going to remarry, his daughter would always come first. In response, plaintiff sent him a message saying "don't f*** with me, do what . . . you have to do." Defendant was served with the second domestic violence complaint at 7:16 on the evening of April 24, 2012.
Defendant disputed that he had sent plaintiff an excessive number of text messages. He claimed that he and plaintiff communicated through text messages, and he could not send long text messages so he had to break them up and send them in parts. Defendant also denied that he knew where plaintiff was staying.
Defendant claimed that the message he sent to plaintiff at 5:00 a.m. on April 24 was a mistake. He said that he prepared the message the previous evening but was interrupted by a phone call and did not send it. The next morning, at 5:00 a.m., his telephone was on a pillow and he "sort of . . . pocket dial[ed]." The message said that he accepted plaintiff for what she was, and he also accepted her way of living, because he knew all about her and her way of doing things. He again denied knowing where plaintiff was living or telling her that he knew where she was. The other messages defendant sent on April 24 were his efforts to have plaintiff permit his daughter to talk to him on the telephone.
Defendant alleged that after plaintiff filed the domestic violence complaint, her brother told him that she would dismiss it if he would dismiss his custody action. Plaintiff claimed it was defendant who approached her brother and offered to dismiss the custody suit if plaintiff would dismiss the domestic violence complaint.
The trial court found plaintiff's testimony more credible than that of defendant. The court rejected defendant's assertion that their daughter, who was at the time not even three years old, "detail[ed] behaviors by her mother with kissing other people." The court also rejected defendant's explanation concerning the text he sent at 5:00 a.m. on April 24, 2012.
The court recognized that plaintiff needed "to establish a predicate act of domestic violence from the allegations contained from the April 22 and 24 communications, as well as[] her other statements in her complaint and her testimony . . . regarding contact that she had with the defendant during [the] exchange of their daughter[.]" The court further explained that it had to evaluate the incidents of the 22nd and the 24th in the context of "how the plaintiff and defendant might interpret the communications between them."
Next, the court acknowledged that the predicate act plaintiff alleged was harassment under N.J.S.A. 2C:33-4, and under that statute a person commits an offense when,
with a purpose to harass the other person, they make or . . . cause to be made a communication here, in terms of what I find to be applicable, under sub-section A, in . . . any manner likely to cause annoyance or alarm to that person, or under sub-section C, engages in any other course of alarming conduct with the purpose to alarm or seriously annoy the other person.

The court found that plaintiff had made it clear to defendant she was willing to communicate with him "exclusively for the purpose of discussing the issues regarding their daughter." After recounting the testimony of the parties and making its credibility findings, the court made its decision:
Again, . . . there are just inconsistencies in [defendant's] version of events that cause this court not to find his testimony to be credible. As a result, I do find that the plaintiff . . . has proven a predicate act of domestic violence, under the harassment statute. Further, I find that there is a strong likelihood that in the absence of a final restraining order, that she will continue to be subjected to future acts of domestic violence.

As a result, [t]he [c]ourt finds it appropriate for a final restraining order to issue at this time.

The court issued the order and defendant appealed.
We begin with our standard of review and by reiterating established procedural and substantive legal principles that apply to domestic violence cases. The scope of our review of an FRO is limited. Cesare v. Cesare154 N.J. 394, 411 (1998). Generally, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. As our Supreme Court has explained, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. For that reason, we give substantial deference to a trial court's findings of fact and conclusions of law, and we will disturb a trial court's findings and conclusions only when they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence[.]'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.65 N.J. 474, 484 (1974)).
We bear in mind when applying that standard that defendants charged with domestic violence are entitled to ordinary due process protections. J.D. v. M.D.F.207 N.J. 458, 478 (2011). Due process requires that defendants receive "notice defining the issues and an adequate opportunity to prepare and respond"; and "forbids the trial court to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint." Ibid. (citations and internal quotation marks omitted). For that reason, "trial courts should use the allegations set forth in the complaint to guide their questioning of plaintiffs, avoiding the sort of questions that induce[] plaintiff[s] . . . to abandon the history revealed in the complaint in favor of entirely new accusations." Id. at 479.
Nevertheless, if a court determines "testimony might reveal that there are additional prior events that are significant to [its] evaluation, . . . the court must recognize that if it allows that history to be expanded, it has permitted an amendment to the complaint and must proceed accordingly." Id. at 479-80. That may require, depending on the circumstances of the case, adjourning the hearing so that defendant receives proper notice defining the issues and an adequate opportunity to prepare and respond. See id. at 480.
Substantively, a trial court hearing an application for an FRO must make two determinations: whether the plaintiff has proved by a preponderance of the evidence that defendant committed an act of domestic violence; and, if so, whether a restraining order is necessary to protect the plaintiff. Silver v. Silver387 N.J. Super. 112, 125-26 (App. Div. 2006). The DVA defines domestic violence as the commission of any one of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19(a). One of the enumerated offenses, and the one plaintiff alleged in her complaint against defendant, is harassment, N.J.S.A. 2C:33-4. The statute defines harassment in pertinent part as follows:
Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

Two distinct elements must be established to prove the offense of harassment: a purpose to harass and an action under subsection (a), (b), or (c). See Grant v. Wright222 N.J. Super. 191, 196 (App. Div.), certif. denied111 N.J. 562 (1988). Under N.J.S.A. 2C:33-4(a), "there need only be proof of a single such communication, as long as defendant's purpose in making it . . . was to harass and as long as it was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D.supra, 207 N.J. at 477.
A violation of N.J.S.A. 2C:33-4(c) . . ., by contrast, requires proof of a course of conduct. That may consist of conduct that is alarming or it may be a series of repeated acts if done with the purpose to alarm or seriously annoy the intended victim. In interpreting subsection c., which refers to serious annoyance or alarm, this Court has explained that the phrase means to weary, worry, trouble or offend.

[Id. at 478 (citation and internal quotation marks omitted).]

Our Supreme Court has recognized that "[d]rawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of ordinary domestic contretemps[] presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application." Id. at 475 (citation and internal quotation marks omitted). In view of that weighty responsibility, trial courts must be sure to carefully correlate their factual findings with the elements of a specific subsection of the harassment statute.
That is particularly so when a complaint alleges that a defendant has committed harassment by excessive "texting," which has been defined as "'[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.'" L.M.F. v. J.A.F., Jr.421 N.J. Super. 523, 526 (App. Div. 2011) (alteration in original) (citation omitted). There, we recognized that "[o]ur ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions. The ease and speed by which we transmit electronic messages has also created a commensurate expectation of an equally instantaneous response from the recipient." Id. at 534. We also recognized the corresponding strain that technology and "the complexity of human interactions . . . place on Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not." Ibid.
After evaluating the record in light of the foregoing principles, we are constrained to reverse the FRO and remand for a new hearing. From a procedural perspective, the hearing was flawed. Over defendant's objection, the trial court permitted plaintiff to testify about allegations she made against defendant when she filed the previous domestic violence complaint. Those allegations were not specified in the complaint that was the subject of the hearing. The court apparently determined that plaintiff's "testimony might reveal that there [were] additional prior events that [were] significant to [its] evaluation, . . . [but did not] recognize that [by] allow[ing] that history to be expanded, it ha[d]  permitted an amendment to the complaint and [was required to] proceed accordingly." J.D.,supra, 207 N.J. at 479-80. The court made no effort to determine whether defendant was aware of the specific allegations or needed an adjournment to marshal additional evidence, arrange to present other witnesses, or otherwise adequately prepare and respond.
Substantively, it is unclear whether the court found that defendant had committed harassment underN.J.S.A. 2C:33-4(a), (c), or both sub-sections. Although the court summarized in its opinion the elements of each sub-section, when it announced its conclusion it did not correlate any facts with the elements of either. Moreover, defendant established on cross-examination that some of the text messages that plaintiff characterized as harassing involved communications about their daughter or non-threatening comments about their relationship; and some of the communications that plaintiff said frightened her were not even contained in the text messages.
The court did make a credibility determination that defendant sent one message at five o'clock in the morning. But the court did not explain whether it found under N.J.S.A. 2C:33-4(a) that the message constituted a communication that was made "at [an] extremely inconvenient hour[]," or in "any other manner likely to cause annoyance or alarm"; or whether the communication was part of a "course of alarming conduct" under N.J.S.A.2C:33-4(c). And, if the former, we question whether evidence that a text message transmitted at 5:00 a.m., absent evidence of when it was received or likely to be accessed, could alone constitute harassment under N.J.S.A. 2C:33-4(a).
For the foregoing reasons, we reverse the FRO and remand for a new hearing. We do not retain jurisdiction.
Reversed and remanded.

certify
1  Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.