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