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Wednesday, September 29, 2010

State v. Tirado - exclusion of readings where standard statement not read

STATE OF NEW JERSEY, Plaintiff-Respondent, v.

CLEMENT TIRADO,

Defendant-Appellant.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-

6441-08T4

Argued August 31, 2010 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Municipal Appeal No. 003-06-09.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Defendant, Clement Tirado, appeals his second conviction

for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, for which he was sentenced to a two-year license revocation, required to spend forty-eight hours at an Intoxicated Driver Resource Center (IDRC) program, and required to perform thirty days of community service. Appropriate fines and penalties were also imposed.

On appeal, defendant raises the following arguments:

POINT ONE

THE COURT BELOW ERRED IN FINDING BOTH THAT POLICE HAD A REASONABLE AND ARTICULABLE REASON TO STOP MR. TIRADO AND PROBABLE CAUSE TO ARREST HIM.

a. Officer Quintano lacked a reasonable and articulable suspicion to stop Mr. Tirado.

b. Officer Quintano lacked probable cause to arrest Mr. Tirado.

c. The field sobriety tests were incorrectly administered and, therefore, are unreliable.

POINT TWO

THE COURT ERRED IN ITS DETERMINATION THAT MR. TIRADO'S MIRANDA RIGHTS WERE NOT VIOLATED WHEN POLICE CONTINUED TO QUESTION HIM AFTER HE INVOKED HIS RIGHT TO REMAIN SILENT.

POINT THREE

THE COURT ERRED IN FAILING TO SUPPRESS THE BREATHALYZER RESULTS GIVEN THE STATE'S FAILURE TO ESTABLISH THAT DEFENDANT WAS READ THE STANDARD STATEMENT.

I.

A municipal court trial was held in this matter, at which Dumont Police Officer Steven Quintano and Sergeant Vincent Tamburro testified. Quintano was the arresting officer. He testified that on February 14, 2008 at 2:00 a.m., while on road patrol, he was stopped at a red light at the intersection of Prospect and Madison Avenues in Dumont behind a Volkswagen. After deciding to run the car's license plate on his mobile data terminal, Quintano learned that the registered owner of the car was an unlicensed driver. Shortly thereafter, the driver made a right turn onto Madison Avenue, nearly striking the curb in doing so. Quintano decided to make a stop and activated his lights. After proceeding for approximately three blocks, the driver slowly pulled over to the curb.

When approached, the driver, who was observed not to be wearing a seat belt,

admitted that his license was expired. Quintano testified that, while speaking to the driver, he noticed a strong of alcohol on his breath, and that his eyes were red. When asked whether he had been drinking, the driver admitted that he had been drinking beer and Jameson and asked whether he had been observed leaving the Corner Inn.

At that point, Quintano commenced administering field sobriety tests. He testified that he first asked the driver to recite the alphabet without singing it. The driver was unsuccessful, first singing, then slurring over the letters M and N, and completing the alphabet with T, U, V, H, I, J, and K. Quintano then administered a counting test, requesting that the driver count backwards from sixty-seven to fifty-two. The driver did so with difficulty, and his speech was slurred, slow, and somewhat incoherent. Quintano then asked the driver to exit the car, but he needed to use the driver's side door as support in doing so. After finding a level, non-icy area and asking whether the driver had any problems with his legs, Quintano instructed the driver to perform a one-leg stand for thirty seconds. However, the driver had difficulty keeping his balance. He frequently raised his arms to achieve balance, and he dropped his foot numerous times. He similarly failed a heel-to-toe, walk and turn test. At this point the driver, Tirado, was placed under arrest and issued summons for DWI, careless driving, failure to wear a seat belt, and driving with an expired license.

Quintano testified that, following defendant's arrest, he was taken to police headquarters and read his Miranda

rights. Defendant refused to sign the Miranda waiver form proffered to him, stating that he felt "like [he] was being raped." Quintano described defendant's demeanor as "continuously changing between cooperative, uncooperative," and he stated that defendant "had some fits of crying."

At that point, defendant was turned over to Sgt. Tamburro who administered a breathalyzer test. Both Officer Quintano and Sgt. Tamburro testified that the New Jersey Motor Vehicle Commission Standard Statement for Operators of Motor Vehicles (standard statement) was read to defendant before the breathalyzer test was administered. However, both denied reading the statement to defendant while testifying that the other did so and was heard doing so. That statement, when produced in court, did not contain information identifying defendant as the person to whom the statement was read, a case number, or either officer's signature. It did, however, list a response of "yeah, yeah" to the first statement on the form. Two breathalyzer readings disclosed defendant's blood alcohol content to be 0.19.

Thereafter, Tamburro again administered Miranda warnings to defendant, and he again refused to sign the Miranda waiver form. Defendant was then asked the questions set forth on Dumont's Drinking/Driving Report Question/Answer Form, responding that he was drinking beer and shots, that he had consumed three pints and "a few 4 shots," and that he had been at Charlie Brown's and the Corner Inn. However when asked the time between each drink, defendant stated that he felt "uncomfortable," and he refused to answer additional questions. Following objections to the admissibility of defendant's statements in response to the form's questions, the prosecutor withdrew his questions regarding the form, and he did not seek to introduce it into evidence.

At the conclusion of the trial, the municipal court judge found that "probable cause" existed for the stop of defendant's vehicle as the result of evidence that his license was expired and that he nearly hit the curb when making a right turn. The judge found defendant not guilty of the seatbelt offense, but found him guilty of driving without a license, careless driving, and DWI, based both on the subjective field sobriety tests and Quintano's observations and also on the breathalyzer test results. A two-year loss of license was imposed, along with forty-eight hours of IDRC instruction, thirty days of community service, two days of jail time, and appropriate fines and penalties.

The matter was appealed, and at that time, a stay of the license suspension was granted. Upon de novo review, a Law Division judge found defendant guilty of DWI on the basis of both the subjective tests and breathalyzer results and guilty of careless driving as the result of his "erratic" turn. She merged the conviction for careless driving with the DWI conviction for purposes of sentencing. The judge found defendant not guilty of driving without a license. In sentencing, the judge declined to order jail time, but otherwise imposed the same sentence that was imposed by the municipal court judge. This appeal followed.

II.

On appeal, defendant argues that Officer Quintano lacked a reasonable and articulable suspicion that a crime or other offense had been committed when he stopped defendant's vehicle. In support of his argument, defendant relies upon the finding of the Law Division judge that he was not guilty of driving without a license. Defendant argues additionally that there is no support in the record for the Law Division judge's conclusion that his driving was erratic.

We reject defendant's position, determining that Quintano's random use of his mobile data terminal to determine the status of the Volkswagen's registration and its owner's license was permissible, State v. Donis, 157 N.J. 44, 55 (1998), and because the information thus obtained suggested a violation of the law, Quintano had a sufficient basis to stop the car for further investigation. Id. at 56. See also Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979) (permitting stop upon articulable and reasonable suspicion that the motorist is unlicensed); State v. Pitcher, 379 N.J. Super. 308, 314-15 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); State v. Lewis, 288 N.J. Super. 160, 164 (App. Div. 1996); State v. Parks, 288 N.J. Super. 407, 410-11 (App. Div. 1996). Any challenge to the reliability of the information obtained from the mobile data terminal must fail as the result of defendant's admission that his license was suspended.

Defendant next asserts that Quintano lacked probable cause for his arrest, arguing that because he was not stuporous, did not fall, was not involved in an accident, was not observed to have dilated pupils, was not incoherent, did not use abusive language, and was not vomiting, a basis for his arrest was lacking. However, such indicia, although probative, are not required. "It is not requisite that '* * * the accused be absolutely "drunk," in the sense of being sodden with alcohol'" State v. Johnson, 42 N.J. 146, 164 (1964) (quoting State v. Emery, 27 N.J. 348, 355 (1958)), but merely that he be shown to have "'imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.'" Id. at 165 (quoting Emery, supra,, 27 N.J. at 355.)

We find that evidence of defendant's admission that he had been drinking beer and shots, his inability to perform field sobriety tests, his difficulties in speaking clearly, and his alcohol-laden breath, adequately established probable cause in this case. "Probable cause for a search or arrest exists where a police officer has a well-founded suspicion or belief of guilt." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (citing State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985)). "That suspicion or belief may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion." Ibid. (citing Wanczyk, supra, 201 N.J. Super. at 266). "Probable cause to arrest or search an individual generally is defined as a well grounded suspicion or belief on the part of the searching or arresting officer that a crime [or offense] has been or is being committed." State v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989).

"'[T]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer "had reasonable grounds to believe" that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50].'" Moskal, supra, 246 N.J. Super. at 21 (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). Officer Quintano's observations of defendant's appearance, speech and field tests, together with defendant's admission that he had been drinking meet this standard. State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001). See also State v. Bealor, 187 N.J. 574, 588-89 (2006) (citing with approval decision in which DWI convictions were premised on field sobriety tests); State v. Nece, 206 N.J. Super. 118, 128 (Law Div. 1985) (holding that: "Our courts have long accepted the results of field sobriety tests as reliable evidence of intoxication.").

Moreover, we reject defendant's argument that the field tests were improperly administered because Quintano did not ascertain whether defendant suffered from any underlying condition that would impair his ability to perform the tests and because he did not state (and was not asked) the criteria that he used to judge success or failure. We note that both the alphabet and numbers tests were administered to defendant while he remained in the car, and for that reason, the existence of any underlying physical impairment would not have been relevant to his performance. Further, Quintano testified that, once defendant had alighted, with difficulty, from the car, he was asked if he had any problem with his legs. The fact that Quintano could not remember a negative reply, together with the continuation of testing, raises the inference that defendant's response was negative. And finally, our review of Quintano's testimony detailing the nature of defendant's difficulties in completing the field sobriety tests administered to him satisfies us that a solid evidential basis existed for Quintano's conclusion that the tests were failed.

III.

Defendant next argues that the trial court erred in determining that defendant's Miranda rights were not violated when the police continued to question him after he had invoked his right to silence. At issue is the admissibility of defendant's partial responses to the questions set forth on the Dumont Police Department's Drinking/Driving Report Question/ Answer Form, given immediately after defendant refused to sign a Miranda waiver form.

We decline to address this point, noting that, in the municipal court trial, the prosecutor withdrew all testimony relating to that form when confronted with objections based on Miranda, and he did not introduce the document into evidence. As a consequence, the admissions and documentary evidence did not constitute a part of the municipal court record. We recognize that, when similarly confronted with defense counsel's challenge to the admissibility of defendant's statements as set forth on the Drinking/Driving Form, the Law Division judge found the statements admissible and read them into the record. However, the judge does not appear to have relied on those statements in determining that defendant was guilty of driving while intoxicated. Further, even if the statements were improperly admitted, we find that the evidence was sufficient to sustain defendant's DWI conviction in their absence.

IV.

As a final matter, defendant challenges his per se conviction for driving while intoxicated, premised on the results of the two breathalyzer tests, asserting that the evidence was insufficient to demonstrate beyond a reasonable doubt that the standard statement was read to him or that he was made aware of his right to independent testing.

We have held:

The Legislature has required that police officers read to all defendants arrested for DWI a standard statement, prepared by the Director of the Division of Motor Vehicles, before endeavoring to administer a breathalyzer test. N.J.S.A. 39:4-50.2(e); State v. Widmaier, 157 N.J. 475, 489 (1999). "By doing so, the Legislature has provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." Id. at 489.

[State v. Spell, 395 N.J. Super. 337, 344 (App. Div. 2007), aff'd in part and mod. in part on other grounds, 196 N.J. 537 (2008).]

In this case, the Law Division judge stated that she was unable to determine what officer read the standard statement to defendant, but she was "convinced" that it had been read. Our review of the record does not leave us similarly convinced, State v. Locurto 157 N.J. 463, 470-71 (1999), since neither Quintano nor Tamburro acknowledged having read the statement to defendant, and the statement itself does not clearly manifest the fact that it was in fact read or to whom it might have been read. Moreover, the officers' testimony does not establish that the appropriate statement was read, that the alleged reading conformed to the statement, or defendant's responses other than the alleged "yeah, yeah." In our view, such meager and equivocal evidence does not establish the requisite fact of an accurate reading of the proper statement beyond a reasonable doubt. As a consequence, we reverse defendant's per se conviction for DWI, but affirm his DWI conviction based on subjective evidence including the field sobriety tests.

Affirmed in part and reversed in part.

Defendant committed his first offense on April 29, 2002.

Quintano testified on cross-examination that he did not know whether the seatbelt had been removed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

State v. Tirado - exclusion of readings where standard statement not read

STATE OF NEW JERSEY, Plaintiff-Respondent, v.

CLEMENT TIRADO,

Defendant-Appellant.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-

6441-08T4

Argued August 31, 2010 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Municipal Appeal No. 003-06-09.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Defendant, Clement Tirado, appeals his second conviction

for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, for which he was sentenced to a two-year license revocation, required to spend forty-eight hours at an Intoxicated Driver Resource Center (IDRC) program, and required to perform thirty days of community service. Appropriate fines and penalties were also imposed.

On appeal, defendant raises the following arguments:

POINT ONE

THE COURT BELOW ERRED IN FINDING BOTH THAT POLICE HAD A REASONABLE AND ARTICULABLE REASON TO STOP MR. TIRADO AND PROBABLE CAUSE TO ARREST HIM.

a. Officer Quintano lacked a reasonable and articulable suspicion to stop Mr. Tirado.

b. Officer Quintano lacked probable cause to arrest Mr. Tirado.

c. The field sobriety tests were incorrectly administered and, therefore, are unreliable.

POINT TWO

THE COURT ERRED IN ITS DETERMINATION THAT MR. TIRADO'S MIRANDA RIGHTS WERE NOT VIOLATED WHEN POLICE CONTINUED TO QUESTION HIM AFTER HE INVOKED HIS RIGHT TO REMAIN SILENT.

POINT THREE

THE COURT ERRED IN FAILING TO SUPPRESS THE BREATHALYZER RESULTS GIVEN THE STATE'S FAILURE TO ESTABLISH THAT DEFENDANT WAS READ THE STANDARD STATEMENT.

I.

A municipal court trial was held in this matter, at which Dumont Police Officer Steven Quintano and Sergeant Vincent Tamburro testified. Quintano was the arresting officer. He testified that on February 14, 2008 at 2:00 a.m., while on road patrol, he was stopped at a red light at the intersection of Prospect and Madison Avenues in Dumont behind a Volkswagen. After deciding to run the car's license plate on his mobile data terminal, Quintano learned that the registered owner of the car was an unlicensed driver. Shortly thereafter, the driver made a right turn onto Madison Avenue, nearly striking the curb in doing so. Quintano decided to make a stop and activated his lights. After proceeding for approximately three blocks, the driver slowly pulled over to the curb.

When approached, the driver, who was observed not to be wearing a seat belt,

admitted that his license was expired. Quintano testified that, while speaking to the driver, he noticed a strong of alcohol on his breath, and that his eyes were red. When asked whether he had been drinking, the driver admitted that he had been drinking beer and Jameson and asked whether he had been observed leaving the Corner Inn.

At that point, Quintano commenced administering field sobriety tests. He testified that he first asked the driver to recite the alphabet without singing it. The driver was unsuccessful, first singing, then slurring over the letters M and N, and completing the alphabet with T, U, V, H, I, J, and K. Quintano then administered a counting test, requesting that the driver count backwards from sixty-seven to fifty-two. The driver did so with difficulty, and his speech was slurred, slow, and somewhat incoherent. Quintano then asked the driver to exit the car, but he needed to use the driver's side door as support in doing so. After finding a level, non-icy area and asking whether the driver had any problems with his legs, Quintano instructed the driver to perform a one-leg stand for thirty seconds. However, the driver had difficulty keeping his balance. He frequently raised his arms to achieve balance, and he dropped his foot numerous times. He similarly failed a heel-to-toe, walk and turn test. At this point the driver, Tirado, was placed under arrest and issued summons for DWI, careless driving, failure to wear a seat belt, and driving with an expired license.

Quintano testified that, following defendant's arrest, he was taken to police headquarters and read his Miranda

rights. Defendant refused to sign the Miranda waiver form proffered to him, stating that he felt "like [he] was being raped." Quintano described defendant's demeanor as "continuously changing between cooperative, uncooperative," and he stated that defendant "had some fits of crying."

At that point, defendant was turned over to Sgt. Tamburro who administered a breathalyzer test. Both Officer Quintano and Sgt. Tamburro testified that the New Jersey Motor Vehicle Commission Standard Statement for Operators of Motor Vehicles (standard statement) was read to defendant before the breathalyzer test was administered. However, both denied reading the statement to defendant while testifying that the other did so and was heard doing so. That statement, when produced in court, did not contain information identifying defendant as the person to whom the statement was read, a case number, or either officer's signature. It did, however, list a response of "yeah, yeah" to the first statement on the form. Two breathalyzer readings disclosed defendant's blood alcohol content to be 0.19.

Thereafter, Tamburro again administered Miranda warnings to defendant, and he again refused to sign the Miranda waiver form. Defendant was then asked the questions set forth on Dumont's Drinking/Driving Report Question/Answer Form, responding that he was drinking beer and shots, that he had consumed three pints and "a few 4 shots," and that he had been at Charlie Brown's and the Corner Inn. However when asked the time between each drink, defendant stated that he felt "uncomfortable," and he refused to answer additional questions. Following objections to the admissibility of defendant's statements in response to the form's questions, the prosecutor withdrew his questions regarding the form, and he did not seek to introduce it into evidence.

At the conclusion of the trial, the municipal court judge found that "probable cause" existed for the stop of defendant's vehicle as the result of evidence that his license was expired and that he nearly hit the curb when making a right turn. The judge found defendant not guilty of the seatbelt offense, but found him guilty of driving without a license, careless driving, and DWI, based both on the subjective field sobriety tests and Quintano's observations and also on the breathalyzer test results. A two-year loss of license was imposed, along with forty-eight hours of IDRC instruction, thirty days of community service, two days of jail time, and appropriate fines and penalties.

The matter was appealed, and at that time, a stay of the license suspension was granted. Upon de novo review, a Law Division judge found defendant guilty of DWI on the basis of both the subjective tests and breathalyzer results and guilty of careless driving as the result of his "erratic" turn. She merged the conviction for careless driving with the DWI conviction for purposes of sentencing. The judge found defendant not guilty of driving without a license. In sentencing, the judge declined to order jail time, but otherwise imposed the same sentence that was imposed by the municipal court judge. This appeal followed.

II.

On appeal, defendant argues that Officer Quintano lacked a reasonable and articulable suspicion that a crime or other offense had been committed when he stopped defendant's vehicle. In support of his argument, defendant relies upon the finding of the Law Division judge that he was not guilty of driving without a license. Defendant argues additionally that there is no support in the record for the Law Division judge's conclusion that his driving was erratic.

We reject defendant's position, determining that Quintano's random use of his mobile data terminal to determine the status of the Volkswagen's registration and its owner's license was permissible, State v. Donis, 157 N.J. 44, 55 (1998), and because the information thus obtained suggested a violation of the law, Quintano had a sufficient basis to stop the car for further investigation. Id. at 56. See also Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979) (permitting stop upon articulable and reasonable suspicion that the motorist is unlicensed); State v. Pitcher, 379 N.J. Super. 308, 314-15 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); State v. Lewis, 288 N.J. Super. 160, 164 (App. Div. 1996); State v. Parks, 288 N.J. Super. 407, 410-11 (App. Div. 1996). Any challenge to the reliability of the information obtained from the mobile data terminal must fail as the result of defendant's admission that his license was suspended.

Defendant next asserts that Quintano lacked probable cause for his arrest, arguing that because he was not stuporous, did not fall, was not involved in an accident, was not observed to have dilated pupils, was not incoherent, did not use abusive language, and was not vomiting, a basis for his arrest was lacking. However, such indicia, although probative, are not required. "It is not requisite that '* * * the accused be absolutely "drunk," in the sense of being sodden with alcohol'" State v. Johnson, 42 N.J. 146, 164 (1964) (quoting State v. Emery, 27 N.J. 348, 355 (1958)), but merely that he be shown to have "'imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.'" Id. at 165 (quoting Emery, supra,, 27 N.J. at 355.)

We find that evidence of defendant's admission that he had been drinking beer and shots, his inability to perform field sobriety tests, his difficulties in speaking clearly, and his alcohol-laden breath, adequately established probable cause in this case. "Probable cause for a search or arrest exists where a police officer has a well-founded suspicion or belief of guilt." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (citing State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985)). "That suspicion or belief may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion." Ibid. (citing Wanczyk, supra, 201 N.J. Super. at 266). "Probable cause to arrest or search an individual generally is defined as a well grounded suspicion or belief on the part of the searching or arresting officer that a crime [or offense] has been or is being committed." State v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989).

"'[T]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer "had reasonable grounds to believe" that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50].'" Moskal, supra, 246 N.J. Super. at 21 (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). Officer Quintano's observations of defendant's appearance, speech and field tests, together with defendant's admission that he had been drinking meet this standard. State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001). See also State v. Bealor, 187 N.J. 574, 588-89 (2006) (citing with approval decision in which DWI convictions were premised on field sobriety tests); State v. Nece, 206 N.J. Super. 118, 128 (Law Div. 1985) (holding that: "Our courts have long accepted the results of field sobriety tests as reliable evidence of intoxication.").

Moreover, we reject defendant's argument that the field tests were improperly administered because Quintano did not ascertain whether defendant suffered from any underlying condition that would impair his ability to perform the tests and because he did not state (and was not asked) the criteria that he used to judge success or failure. We note that both the alphabet and numbers tests were administered to defendant while he remained in the car, and for that reason, the existence of any underlying physical impairment would not have been relevant to his performance. Further, Quintano testified that, once defendant had alighted, with difficulty, from the car, he was asked if he had any problem with his legs. The fact that Quintano could not remember a negative reply, together with the continuation of testing, raises the inference that defendant's response was negative. And finally, our review of Quintano's testimony detailing the nature of defendant's difficulties in completing the field sobriety tests administered to him satisfies us that a solid evidential basis existed for Quintano's conclusion that the tests were failed.

III.

Defendant next argues that the trial court erred in determining that defendant's Miranda rights were not violated when the police continued to question him after he had invoked his right to silence. At issue is the admissibility of defendant's partial responses to the questions set forth on the Dumont Police Department's Drinking/Driving Report Question/ Answer Form, given immediately after defendant refused to sign a Miranda waiver form.

We decline to address this point, noting that, in the municipal court trial, the prosecutor withdrew all testimony relating to that form when confronted with objections based on Miranda, and he did not introduce the document into evidence. As a consequence, the admissions and documentary evidence did not constitute a part of the municipal court record. We recognize that, when similarly confronted with defense counsel's challenge to the admissibility of defendant's statements as set forth on the Drinking/Driving Form, the Law Division judge found the statements admissible and read them into the record. However, the judge does not appear to have relied on those statements in determining that defendant was guilty of driving while intoxicated. Further, even if the statements were improperly admitted, we find that the evidence was sufficient to sustain defendant's DWI conviction in their absence.

IV.

As a final matter, defendant challenges his per se conviction for driving while intoxicated, premised on the results of the two breathalyzer tests, asserting that the evidence was insufficient to demonstrate beyond a reasonable doubt that the standard statement was read to him or that he was made aware of his right to independent testing.

We have held:

The Legislature has required that police officers read to all defendants arrested for DWI a standard statement, prepared by the Director of the Division of Motor Vehicles, before endeavoring to administer a breathalyzer test. N.J.S.A. 39:4-50.2(e); State v. Widmaier, 157 N.J. 475, 489 (1999). "By doing so, the Legislature has provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." Id. at 489.

[State v. Spell, 395 N.J. Super. 337, 344 (App. Div. 2007), aff'd in part and mod. in part on other grounds, 196 N.J. 537 (2008).]

In this case, the Law Division judge stated that she was unable to determine what officer read the standard statement to defendant, but she was "convinced" that it had been read. Our review of the record does not leave us similarly convinced, State v. Locurto 157 N.J. 463, 470-71 (1999), since neither Quintano nor Tamburro acknowledged having read the statement to defendant, and the statement itself does not clearly manifest the fact that it was in fact read or to whom it might have been read. Moreover, the officers' testimony does not establish that the appropriate statement was read, that the alleged reading conformed to the statement, or defendant's responses other than the alleged "yeah, yeah." In our view, such meager and equivocal evidence does not establish the requisite fact of an accurate reading of the proper statement beyond a reasonable doubt. As a consequence, we reverse defendant's per se conviction for DWI, but affirm his DWI conviction based on subjective evidence including the field sobriety tests.

Affirmed in part and reversed in part.

Defendant committed his first offense on April 29, 2002.

Quintano testified on cross-examination that he did not know whether the seatbelt had been removed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Thursday, September 16, 2010

smell of weed does not automatically permit search State v Webb DOCKET NO. A-1154-09T4

smell of weed does not automatically permit search State v Webb DOCKET NO. A-1154-09T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RICARDO WEBB,

Defendant-Respondent.

_________________________________


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1154-09T4


June 17, 2010


Submitted May 11, 2010 – Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hunterdon County, Indictment No. 08-09-00205-S.

Paula T. Dow, Attorney General, attorney for appellant (Russell J. Curley, Deputy Attorney General, of counsel and on the brief).

McDonald & Rogers, L.L.C., attorneys for respondent (Michael J. Rogers, on the brief).

PER CURIAM

Defendant Ricardo Webb and co-defendant Brian Bennett were charged in a two count indictment with two second-degree offenses: money laundering, N.J.S.A. 2C:21-25(a) and N.J.S.A. 2C:2-6, and conspiracy, N.J.S.A. 2C:5-2. The two were stopped for a traffic violation when the police noted the odor of raw marijuana. Arresting the defendants, the police searched the vehicle and its contents without a warrant. The trial court granted defendant's motion to suppress the evidence seized in the warrantless search. By leave granted, the State appeals, arguing the search was proper, and exigent circumstances were presented so that the warrantless search falls within the automobile exception to the warrant requirement. We disagree and affirm.

The facts were elicited from the arresting officer, who was the sole witness testifying at the suppression hearing. The times of the various events stated below were taken from a video, recorded by a dashboard mounted motor vehicle recorder in the patrol car. The video tape was admitted into evidence.

On May 5, 2005, Patrol Corporal Joseph Greco of the Readington Township Police Department, while working the 6:00 p.m. to 6:00 a.m. night shift, responded to a central dispatch radio call from a citizen who reported an erratic driver in a white Chevrolet Suburban with a New York license plate traveling west on Route 202, then turning southbound onto Old York Road. When Greco received the call at 2:20 a.m., he was approximately 200 yards from that intersection and immediately proceeded to the area. He saw a white Suburban turning east from Old York Road onto Pleasant Run Road. When Greco pulled out, the Suburban "accelerated very quickly." Greco was driving sixty miles an hour in an effort to cut off the Suburban and effectuate a stop. The posted speed limit on rural, residential Pleasant Run Road is twenty-five miles per hour.

Greco stopped the Suburban, approached the driver, later determined to be defendant, and requested he produce his credentials. Greco testified, "As soon as [defendant] opened up the window, I smelled marijuana, raw marijuana, coming from inside the car. It was really strong."

Greco radioed for back-up, which arrived at 2:32 a.m. That evening, three police officers, including Greco, were on duty in Readington Township. The other two duty officers, Sergeant Campbell and Patrolman Corsentino, responded to Greco's request.

Greco told defendant he smelled marijuana and asked if there was marijuana in the car. Defendant said no and was asked to step out of the car to the front of the vehicle, where the officers read him his Miranda[1] rights. Greco then approached Bennett, the passenger, asked him to step to the rear of the car and queried what he knew about marijuana in the vehicle. Bennett did not respond and also, was read his rights.

Defendant and Bennett were detained and standing behind the Suburban when Greco began to search the interior of the vehicle. In the back seat, Greco found "a backpack filled with cash[,]" which he seized at 2:39 a.m. The sum seized was $104,990. Patrolman Corsentino handcuffed defendant and Greco handcuffed Bennett. The two were arrested and placed in separate patrol cars. The officers continued to search the vehicle and its contents.

Greco called the canine unit requesting a trained drug-sniffing dog. Sergeant Izzo, Readington's on-call detective, arrived at 3:22 a.m. and Sheriff's Officer Pino arrived with the county canine at 3:59 a.m. Pino requested the backpack be returned to the back seat of the Suburban. The canine reacted to the backpack; however, no marijuana was found in defendant's vehicle. The Suburban was impounded, and the defendants were taken to the police station for processing at 4:24 a.m.[2] Neither Greco nor the two back-up officers applied for a search warrant.

In a written opinion, the trial court concluded the evidence must be suppressed. The court considered the totality of the circumstances, in light of the three-pronged test set forth in State v. Peña-Flores, 198 N.J. 6, 28 (2009). The court found the State had not shown the impracticality of obtaining a warrant and, therefore, had not satisfied the necessary exigent circumstances justifying a warrantless search of defendant's vehicle.

We granted the State's motion for leave to appeal. The State argues the trial court erred in suppressing the seized evidence as the automobile exception to the warrant requirement was properly supported by the undisputed facts.

In reviewing a motion to suppress evidence, this court must defer to the trial court's fact findings underlying its decision, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We may not substitute our own conclusions regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999); accord Robinson, supra, 200 N.J. at 15; Elders, supra, 192 N.J. at 243-44. We specifically defer to the credibility determinations of the trial court, particularly its review of competing factual testimony, Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966), as these factual determinations "are substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We reverse only when the determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. However, we need not defer to any legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990) (holding that if "the trial court acts under a misconception of the applicable law," we need not defer to its ruling). The trial court's application of the law is subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

The Fourth Amendment to the United States Constitution, and Article I, paragraph 7 of the New Jersey Constitution require "police officers obtain a warrant before searching a person's property, unless the search falls within one of the recognized exceptions to the warrant requirement." State v. Cassidy, 179 N.J. 150, 160 (2004) (internal quotations omitted); see also Peña-Flores, supra, 198 N.J. at 18; Robinson, supra, 200 N.J. at 3 ("The warrant requirement embodied in both" the State and Federal Constitutions "limits the power of the sovereign to enter our homes and seize our persons or our effects."). A warrantless search is presumed invalid, and places the burden on the State to prove that the search "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)); State v. Patino, 83 N.J. 1, 7 (1980).

New Jersey's application of the automobile exception to the warrant requirement permissibly allows a search upon the finding of probable cause to believe the vehicle contains evidence of criminal activity and "exigent circumstances," including "the unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway." State v. Alston, 88 N.J. 211, 233 (1981) (citing Chambers v. Maroney, 399 U.S. 42, 50-51 90 S. Ct. 1975, 1980-81, 26 L. Ed. 2d 419, 428 (1970)); accord State v. Cooke, 163 N.J. 657, 664 (2000).

In Peña-Flores, the Court reaffirmed the automobile exception to the warrant requirement, as well as the absolute necessity that the State prove exigent circumstances to justify a warrantless search.

[I]n accordance with "our unwavering precedent," the warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle.

[Peña-Flores, supra, 198 N.J. at 28 (citations omitted).]

The Court observed that exigency must be determined on a "case-by-case basis" and "[n]o one factor is dispositive; courts must consider the totality of the circumstances." Ibid. However, the analysis remains constant because "the issues of officer safety and the preservation of evidence [are] the fundamental inquiry." Id. at 29.

Although "[t]here is no magic formula -- it is merely the compendium of facts that make it impracticable to secure a warrant[,]" ibid., the Court identified a non-exhaustive list of considerations when determining the existence of exigent circumstances, including:

the location of the [search]; the nature of the neighborhood; the unfolding of the events establishing probable cause; . . . whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

[Ibid.]

Here, the testimony presented at the suppression hearing was shown to provide probable cause supporting Greco's unexpected motor vehicle stop. Further, the aroma of raw marijuana wafting from the vehicle after defendant opened the window satisfactorily supported the probable cause requirement that criminal evidence was likely contained in the vehicle. These findings are not challenged. Accordingly, we center our review on the third prong necessary to obviate the warrant requirement, whether exigent circumstances were presented.

The State argues the events at hand unfolded quickly, the area of the stop was dark and rural, and the possibility of confederates was likely. Moreover, the State argues that because the police had probable cause to believe the vehicle contained evidence of a crime, coupled with its mobility and the vehicle owner's "'lessened expectation of privacy[,]'" the warrantless search was justified. State v. Hammer, 346 N.J. Super. 359, 366 (App. Div. 2001) (quoting Cooke, supra, 163 N.J. at 670).

The State's focus is on the mobility of the vehicle and the potential for interference if left unattended. These facts alone, which likely would be present in all motor vehicle stops accompanied by probable cause to suspect criminal activity, are insufficient to support a finding of exigency. The Supreme Court has instructed that although these factors must be considered, a lawful warrantless search is dependent on the impracticality of obtaining a warrant. Peña-Flores, supra, 198 N.J. at 28.

Further, these facts cannot be isolated from the totality of the circumstances presented. State v. Dunlap, 185 N.J. 543, 551 (2006); Cooke, supra, 163 N.J. at 675. Other considerations identified by Judge Rubin in his careful analysis of the facts presented in light of Peña-Flores, included the police outnumbered the suspects throughout the period, traffic in the area was very light, and the rural neighborhood was generally quiet. These additional facts evince a diminished concern for the officers' safety. Further, although police suggested there was no place to tow the vehicle, the number of officers -- which at one point totaled five -- strongly suggested an ability to secure the vehicle where it was stopped while a warrant was secured.

In the companion case consolidated with Peña-Flores, the Court determined there was no exigency justifying the warrantless search in the matter involving defendant Fuller, noting:

[Officer] Clemens pulled Fuller over for a traffic violation in broad daylight on a city street at 1:15 in the afternoon. Fuller was subsequently arrested and secured inside the cruiser, and thus had no opportunity to gain access to the vehicle or anything it contained. There is nothing in the record to suggest that Fuller had cohorts who might have come on the scene. Clemens was, at all times, assisted by one to three other troopers. The vehicle could have been impounded or one officer could have remained with it while a warrant was sought by telephone or in person. There was simply no urgent, immediate need for the officers to conduct a full search of the automobile. See Dunlap, supra, 185 N.J. at 550.

[Pena-Flores, supra, 198 N.J. at 32.]

Here, the police did not attempt to obtain a warrant of any kind. The initial stop and discovery of possible illegal activity was almost simultaneous. Necessary police back-up responded swiftly and defendants were secured quickly. The record demonstrates this was not a highly volatile situation. The officers waited nearly one and one-half hours for the drug canine. During the suppression hearing, no evidence was presented on the length of time needed to obtain a search warrant. We can only speculate whether an effort in this regard may have yielded success in the time the police spent on scene.

The State minimizes the practical possibility of obtaining a telephonic warrant, arguing that if exigent circumstances are presented to support a telephonic warrant, then those same circumstances support a warrantless search. Despite the simplicity of this logic, we reject it as unpersuasive.

In State v. Valencia, 93 N.J. 126, 139 (1983), the Supreme Court pronounced formal procedural prerequisites for "a search authorized by a judge over the telephone" which "is, for analytical purposes, to be considered a form of warrantless search."[3] Ibid. The Court stated:

Upon a motion to suppress the evidence from such a search, the burden will be upon the State to establish its validity. If the State demonstrates (1) that the issuing judge found both exigent circumstances to excuse the failure to obtain a written warrant and probable cause to conduct the search and (2) that all of the procedural safeguards that we have outlined to assure the underlying reliability of the judge's decision to authorize the search have been met, the telephone authorization to search will then be deemed to be the functional equivalent of a written warrant. The burden of demonstrating the invalidity of the search shall thereafter revert to the defendant, in which event the determination of the issuing judge as to the existence of both exigent circumstances and probable cause shall be accorded substantial deference.

[Ibid.]

Since Valencia, the use of telephonic warrants has expanded, culminating in the Court's amendment of Rule 3:5-3(b) "to underscore that an officer may resort to electronic or telephonic means without the need to prove exigency." Pena-Flores, supra, 198 N.J. at 35.

In conducting a fact-sensitive and objective analysis to discern exigency, "the degree of urgency and the amount of time necessary to obtain a warrant" are always a consideration. Cassidy, supra, 179 N.J. at 160 (internal quotations omitted). The absence of the State's attempt to obtain a warrant precludes such an analysis.

We remain mindful of the multitude of decisions police offices make in encounters with criminal suspects. Police safety remains a dominant concern. Yet, "'[c]ourts in this State consistently have maintained that strict adherence to the protective rules governing search warrants is an integral part of the constitutional armory safeguarding citizens from unreasonable searches and seizures.'" State v. Marshall, 199 N.J. 602, 617 (2009) (quoting Valencia, supra, 93 N.J. at 134). When heightened circumstances are mitigated by subsequent events, as demonstrated here, safeguarding a defendant's constitutional rights becomes paramount.

We find no basis to depart from the deference we owe the trial judge's decision and concur with his conclusion that "[o]nce the police determined there was probable cause based on the odor of marijuana and given the circumstances, . . . a warrant should have been obtained." See Elders, supra, 192 N.J. at 243-44.

Affirmed.



[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

[2] In addition to the indicted offenses, defendant was issued a traffic summons for careless driving.

[3] Although formal procedures for telephonic warrants were not adopted until Valencia, "the procedure had long before been readily available to police in truly exigent circumstances." State v. Lewis, 227 N.J. Super. 593, 598-99 (App. Div. 1988), aff'd, 116 N.J. 477 (1989). See, e.g., State v. Liberti, 161 N.J. Super. 575, 578-80 (App. Div. 1978), certif. denied. 79 N.J. 502 (1979).


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION