State v. Don C. Shaw (A-48-11; 068741)

State v. Don C. Shaw (A-48-11; 068741)

The police did not have a reasonable , articulable

suspicion of criminal activity to justify the

investigatory detention, which was based on nothing

more than a non-particularized racial description of

the person sought. The parole warrant was not an

intervening circumstance that sufficiently purged the

taint from the unlawful detention. 12-13-12 

FRANK ALFANO, JR., Plaintiff-Appellant, v. MARGATE CITY, DAVID WOLFSON, CHIEF OF POLICE and THOMAS HILTNER, MUNICIPAL CLERK OF MARGATE, DOCKET NO. A-3797-11T4

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FRANK ALFANO, JR.,

Plaintiff-Appellant,

v.

MARGATE CITY, DAVID WOLFSON,

CHIEF OF POLICE and THOMAS

HILTNER, MUNICIPAL CLERK OF

MARGATE,

DOCKET NO. A-3797-11T4

September 25, 2012

Argued September 12, 2012 - Decided

Before Judges Sapp-Peterson and Haas.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Atlantic County, Docket No. L-141-12.

Donald M. Doherty, Jr., argued the cause for appellant.

John Scott Abbott argued the cause for respondents.

PER CURIAM

Plaintiff Frank Alfano, Jr. made a request under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA), for police reports generated in connection with an incident involving a bicyclist falling from the Margate Bridge. Defendant Margate City denied the request and plaintiff instituted an action to secure the production of the records sought. After oral argument on the return date of an order to show cause, the trial judge dismissed the complaint. We reverse and remand for further proceedings consistent with this opinion.

I.

The relevant facts are not in dispute. On November 18, 2011, a newspaper reported that a bicyclist had "tumbled over the railing on the Margate Bridge." The bicyclist fell onto the roof of a building and was injured.

On November 21, 2011, plaintiff filed an OPRA request for all police and fire department reports generated by Margate City concerning this incident. The Margate Fire Department complied with this request and provided plaintiff with a copy of a November 18, 2011 report. The report did not identify the bicyclist, but it did indicate that the Department had responded to a report that "a male had jumped off the bridge." The report further stated that, after the "male had jumped on the roof of a building under the bridge," he was "subdued by police and handcuffed."

The Margate Police Department denied plaintiff's request for a report it had prepared concerning this incident. Upon the advice of the county prosecutor's office, it advised plaintiff that the report he sought was exempt from disclosure because it was a "criminal investigatory record" not accessible under OPRA. Plaintiff thereafter filed a complaint and order to show cause against Margate City, the Chief of Police and the City's custodian of records, alleging violations under OPRA.

After oral argument on the order to show cause, the trial judge entered an order supported by a written opinion dismissing plaintiff's complaint with prejudice. The judge reviewed the police department's report in camera. He stated that

[a] review of the records sought reveals that this investigation involves a suicide attempt. The male attempted to jump off the Margate Bridge into the water, but instead landed on the roof of a small building by a piling. The report also reveals the man's name, certain comments he made, together with names of family members, friends and witnesses.

Because the Margate Police had "concluded its investigation with no charges being filed" against any party, the judge found that the report did not constitute a criminal investigatory record that is exempt from disclosure under OPRA.

However, the judge went on to find that the report could not be disclosed because to do so would violate the reasonable expectation of privacy of the bicyclist and the individuals interviewed by the police. The judge explained that

[w]hile the law has traditionally viewed suicide and attempted suicide as a crime, any enlightened person recognizes that such a traumatic event affects more people than the principal. The Court believes that when furnishing information to an investigating police officer, anyone close to the principal, and the principal as well, did so with a reasonable expectation of privacy that the information provided would be kept confidential.

In balancing plaintiff's interest in obtaining the report and the right to privacy of the affected individuals, the judge primarily focused on

the potential harm from nonconsensual disclosure. This matter involves a suicide attempt; the man involved and his family and friends were interviewed for the police report shortly thereafter. The potential impact of a suicide attempt on this gentleman and his family is huge: disclosure of same, especially in such a small community, could have severe adverse effects on the man and his family.

Based upon these considerations, the judge found that plaintiff was not entitled to the police report because disclosure would violate the privacy expectations of the individuals referred to in the report.

In so ruling, the judge rejected plaintiff's offer, proffered for the first time during oral argument, to accept a redacted copy of the report with the names of all of the individuals and "the salacious details" of the incident redacted. While not addressed in his written opinion, at oral argument, the judge advised plaintiff's counsel that "I could give you a very heavily redacted copy here, but I don't know what value it'd be to you at all."

On appeal, plaintiff argues that the trial judge erred in dismissing his OPRA claim by refusing to provide him with a redacted copy of the police report with all of the parties' names and identifying information redacted. He requests that we reverse the order and remand the matter to the trial court to redact the report and to address his request for counsel fees.

II.

The trial judge's determinations with respect to the applicability of OPRA are legal conclusions subject to de novo review on appeal.O'Shea v. Twp. of West Milford, 410 N.J. Super. 371, 379 (App. Div. 2009).

The purpose of OPRA "'is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005)(quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). In furtherance of that purpose, the Legislature has declared that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access . . . shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1.

OPRA defines "[g]overnment record" broadly as

any paper, . . . document, . . . data [] or image processed document, information stored or maintained electronically . . . or any copy thereof, that has been made, maintained or kept on file in the course of his or her official business by any officer, . . . agency . . . of the State or of any political subdivision thereof.

[N.J.S.A. 47:1A-1.1.]

That same statute, however, contains exemptions from the definition of government record. One of these exemptions is for a "criminal investigatory record," which is defined as "a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding." Ibid.

We have reviewed the disputed police report and we agree with the trial judge that it is not exempt from disclosure as a "criminal investigatory record." There is nothing in the record to support a finding that the police were actively investigating a crime or attempted crime when the report was prepared. No criminal charges were ever filed after the report was prepared. The report, therefore, is similar to an incident report that is regularly maintained on file, and provided to the public, by police departments.

We also agree with the trial judge that the bicyclist who was the subject of the report, and the individuals who spoke to the police, had a reasonable expectation of privacy concerning the subject matter of the report. Indeed, plaintiff conceded as much by seeking a redacted copy of the report with all personal identifying information deleted.

Under OPRA, "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy." N.J.S.A. 47:1A-1. Our Supreme Court has recognized that, when privacy interests are implicated, in order to balance the competing interests of OPRA - the public's right to access and a public agency's duty to safeguard from public access a person's private information - the following seven factors should be applied:

(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosures; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.

[Burnett v. Cnty. of Bergen, 198 N.J. 408, 427-28 (2009) (citing Doe v. Poritz, 142 N.J. 1, 88 (1995)).]

The trial judge correctly applied these factors in concluding that disclosure of the bicyclist's identity could have severe consequences for him and his family because of the "traumatic event" that was the subject of the report. The disclosure of the names of bicyclist's family members would also serve to reveal his identity. Thus, we believe that the judge correctly held that there was "no overarching need for a citizen to obtain this individual and his family's names."

Where we part company with the trial judge, however, is with his decision to bar access to the entire report rather than provide plaintiff with a redacted copy that would have deleted all personal identifying information. While plaintiff originally sought the entire report, he eventually agreed to accept a redacted version with all names and information that might identify the bicyclist deleted.

We disagree with the judge's conclusion that plaintiff could not be given a redacted report. While finding that the report raised privacy concerns, the judge nevertheless advised plaintiff, on the record and in his written opinion, that the report concerned a suicide attempt and the judge went on to describe some of the information in the report. Thus, the judge implicitly recognized, and we hold, that there was information in the report that could be publicly disclosed without adversely affecting the privacy rights of any person.

In the face of the statutory requirements that "government records shall be readily accessible [,]" N.J.S.A. 47:1A-1, and that "any limitations on the right of access . . . shall be construed in favor of the public's right of access[,]" ibid., plaintiff should have been provided with a copy of the report with the names of the individuals, together with any personal information that could be used to identify them, redacted. Accordingly, we reverse the order dismissing plaintiff's complaint and remand for the trial court to redact the report to remove this identifying information. On remand, the court shall also address plaintiff's request for counsel fees. We do not retain jurisdiction.

Reversed and remanded.

STATE OF NEW JERSEY, Plaintiff-Appellant, v. JOSHUA R. EASTMAN, DOCKET NO. A-3436-11T1

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STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JOSHUA R. EASTMAN, 

DOCKET NO. A-3436-11T1 October 17, 2012

Submitted September 19, 2012 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 11-04-001114.

Richard T. Burke, Warren County Prosecutor, attorney for appellant (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

Eric M. Mark, attorney for respondent.

PER CURIAM

By leave granted, the State appeals from an August 11, 2011 Law Division order suppressing evidence, illegal drugs, seized during a warrantless search of defendant's motor vehicle following a one-vehicle accident. The State argues that under the circumstances presented, the search was reasonable. We disagree, and affirm.

I.

According to the State's proofs, on the morning of October 9, 2010, defendant Joshua Eastman had a one-vehicle accident while operating his pickup truck in White Township, Warren County. The truck rolled on its roof and into a telephone pole, exposing live electrical wires across the roadway.

New Jersey State Trooper Michael Ferrara responded to the scene. After securing the area from traffic, Trooper Ferrara located defendant, who was speaking with emergency personnel from the first-aid squad. When asked for his driving credentials, defendant said the documents were in his truck, which was inaccessible. When asked what happened, defendant explained he swerved to avoid a deer and must have over-corrected.

Upon the trooper observing that defendant was shaky, and had constricted pupils with track marks on his arm, defendant was administered field sobriety tests. Based upon the test results, Trooper Ferrara concluded defendant had operated his vehicle under the influence of drugs and placed him under arrest. Another trooper transported defendant to the Washington Barracks while Trooper Ferrara remained at the scene awaiting the arrival of the utility crew to cut the power to the downed wires.

About a half-hour later, the vehicle became accessible. When Trooper Ferrara approached defendant’s truck he found a wallet on the ground. He opened it and found defendant’s driver’s license, but no insurance card or registration. Because he needed these other documents to properly complete his accident report, Trooper Ferrara searched defendant’s glove compartment where he found not only defendant’s credentials but also what appeared to be illegal drugs in plain view. Laboratory analysis later confirmed the substance to be cocaine. Following his indictment for one count of possession of a controlled dangerous substance, defendant moved to suppress the evidence claiming the search was illegal.

II.

Under the New Jersey and United States Constitutions, warrantless searches and seizures are presumptively invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). In the absence of a warrant, the State bears the burden of demonstrating that the search falls within one of the few defined exceptions to the warrant requirement. State v. Maryland, 167 N.J. 471, 482 (2001).

The constitutional protections prohibiting unreasonable searches and seizures "impose a standard of reasonableness on the exercise of discretion by government officials to protect persons against arbitrary invasions." State v. Maristany, 133 N.J. 299, 304 (1993). "Indeed, the touchstone of the Fourth Amendment is reasonableness." State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed.2d 695 (1984).

Although there is a lessened expectation of privacy attendant to the interior of an automobile, in the absence of one of the recognized exceptions to the constitutional requirement of probable cause and a warrant, the evidence seized must be suppressed.State v. Patino, 83 N.J. at 1, 7 (1980).

In State v. Boykins, 50 N.J. 73, 77 (1967) our Supreme Court stated, "[a] traffic violation as such will justify a search for things related to it. So, for example, if the operator is unable to produce proof of registration, the officer may search the car for evidence of ownership, or if the officer has reason to believe the driver is under the influence of liquor or drugs, he may search the car for alcohol or narcotics[.]" (citations omitted). However, in Patino, supra, 83 N.J. at 12, the Court made clear that a search for evidence of ownership must be "confined to the glove compartment or other area where a registration might normally be kept in a vehicle." (quoting State v. Barrett, 170 N.J. Super. 211, 215 (Law Div. 1979)).

In State v. Jones, 195 N.J. Super. 119 (App. Div. 1984), where we addressed circumstances very similar to the facts presented here, the defendant was the operator of an automobile which overturned, resting on its roof. Police officers were able to extricate the defendant from the automobile by prying open the driver's door. Id. at 121. While the defendant was standing outside of the automobile which was still resting on its roof, an officer asked the defendant to produce his credentials. Ibid. The defendant produced only his driver's license, indicating that the registration and insurance card were inside the automobile. Ibid. After a tow truck operator restored the automobile to its normal position, the officer entered the automobile to search for evidence of ownership and the insurance card. Ibid. At that point, the officer observed illegal drugs in an unzippered leather overnight bag on the backseat. Id. at 122. We identified "the crucial issue in the case, therefore, [to be] whether the police officer had a right to enter the car to search for the registration and insurance card before affording defendant a reasonable opportunity to obtain them from the vehicle himself." Ibid.We ruled the officer did not, interpreting "Boykin and Patino as requiring a showing that defendant was either unable or unwilling to produce the registration and insurance card" to render the search legal. Id. at 123.

We provided further guidance regarding motor vehicle searches in State v. Lark, 319 N.J. Super 618, 627 (App. Div. 1999), aff’d,163 N.J. 294 (2000):

New Jersey law prescribes exactly what an officer should do when, during a traffic stop, a driver fails to present his license and then lies about his identity. The officer may either detain the driver for further questioning until he satisfies himself as to the driver's true identity, see State v. Dickey, 152 N.J. 468, 476-78 (1998), or arrest the driver for operating a vehicle without a license, see N.J.S.A. 39:3-29, 39:5-25; see also State v. Campbell, 53 N.J. 230, 237 (1969). The officer may not, however, absent probable cause to believe that a further offense has been committed, enter the vehicle to look for identification.

Similarly, in State v. Carty, 170 N.J. 632, 635 (2002), our Supreme Court held "that, in order for a consent to search a motor vehicle and its occupants to be valid, law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle."

III.

The State claims that Trooper Ferrara properly opened the glove compartment of defendant's truck, to search for defendant’s registration and insurance card. The State argues it was appropriate that defendant was taken back to the barracks for a breathalyzer test and/or urine screen, which needed to be administered "within a reasonable time," State v. Tischio, 107 N.J. 504, 506 (1987), and the truck needed to be righted from its upside-down position and live wires cleared away before anyone could enter the truck. Hence, the State argues, it was reasonable not to give defendant a chance to retrieve the credentials himself. Once the trooper opened the glove compartment, he saw what appeared to be drugs and a spoon in plain view.

Defendant argues that the trooper had no legitimate reason to search the glove compartment for credentials, because he already had defendant's driver's license from his wallet and could see the truck's license plate number. The trooper also had plenty of time to verify, through his mobile data terminal, whatever he needed to find out about the truck during the hour-and a-half he was waiting for the utility crew to clear the power lines.

When defendant's vehicle became accessible, Trooper Ferrara entered the vehicle and searched the glove compartment without providing defendant the opportunity to obtain the documents. At that point, defendant was in police custody at the barracks approximately twenty minutes away and could have been escorted back to the scene in order to retrieve his documents.¹ The record gives no indication that exigent circumstances existed, necessitating immediate action. Further, Trooper Ferrara did not otherwise have an independent basis for probable cause or a reasonable articulable suspicion to search defendant's vehicle.

Similar to the circumstances in State v. Jones, supra, 195 N.J. Super. 119, Officer Ferrara asked defendant for his driving credentials, and defendant responded truthfully that the documents were in the vehicle, but he could not present them because the vehicle was inaccessible.

In her thorough ten-page opinion, Judge Ann R. Bartlett explained why the search of defendant’s glove compartment was unreasonable:

In the instant matter, prior to arresting [defendant], the [t]rooper could have used his mobile data terminal to obtain information of the vehicle’s registration. He also should have contacted police headquarters and waited for confirmation of [defendant’s] identity and vehicle registration, which theCarty court noted was the appropriate course of action for the trooper in that case. There was ample time to make such an inquiry, given the fact the [t]rooper was waiting at the scene for the arrival of [the utility truck]. The [t]rooper could have questioned (defendant) either prior to his arrest or subsequently at the police station as to the whereabouts of his driver’s license, registration certificate, and insurance card. . . . There is no indication that (defendant) would have been unwilling or unable to produce the necessary documents, if the [t]rooper had given him the opportunity to do so.

Furthermore, as the more recent cases of Carty and Lark make it clear . . . an officer needs probable cause in order to conduct a warrantless search of a vehicle for identification. Trooper Ferrara did not have probable cause or even articulable suspicion that criminal activity was afoot. He had already arrested defendant for driving while under the influence, thus defendant had no way of accessing the vehicle or destroying any evidence therein. There was no indication that defendant may have been hiding controlled substances or alcohol in the vehicle. There was no suspicion that the vehicle was stolen. There was no suggestion that defendant had provided the [t]rooper with false information regarding his identity or ownership of the vehicle. Therefore, the warrantless search of the vehicle, specifically the glove compartment, was unreasonable. All evidence seized therein must be suppressed.

Considering all of these factors, we have no occasion to disturb Judge Bartlett's findings, which are amply supported by the record. State v. Elders, 192 N.J. 224, 243 (2007) ("An appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record."). Nor do we have occasion to disturb her conclusion that the State failed to sustain its burden of demonstrating that the search falls within an exception to the constitutional requirement that police obtain a warrant before conducting a search.

Accordingly, we affirm the order on appeal and remand for further proceedings consistent with this opinion.

Affirmed and remanded.

1 "Practical convenience in aid of law enforcement administration is laudable, but it is not an objectively reasonable basis to justify 'nibbling away' at our constitutional rights." State v. Lark, supra, 319 N.J. Super. at 631.

STATE OF NEW JERSEY, v. JAMES M. HEIGHT, DOCKET NO. A-0024-11T2

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STATE OF NEW JERSEY, v.

JAMES M. HEIGHT,

DOCKET NO. A-0024-11T2

_________________________________

October 16, 2012

Argued: September 12, 2012 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-06-0978.

Michael B. Jones, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Jones, on the brief).

Caitlin J. Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor and Ms. Sidley, on the brief).

PER CURIAM

Following denial of his suppression motion, defendant James Height pled guilty to third-degree possession of CDS (Xanax), N.J.S.A.2C:35-10a(1). On May 6, 2011, defendant was sentenced to five years of probation and accepted into Drug Court. Defendant appeals, challenging denial of his suppression motion. We reverse and remand.

Neptune Township Patrolmen Leslie Borges and Michael Adam, and Regina Jackson, a dispatcher, testified at the suppression hearing. Jackson testified that at 12:26 p.m. on January 19, 2010, an anonymous caller contacted the police and expressed the belief that "subjects" at a specified address in Neptune were "smoking crack cocaine and there is a child there." The officers were promptly dispatched to investigate the call. Ptl. Borges testified he interpreted the call as "subject smoking crack in apartment with a juvenile present." The officers deduced that the proper location was actually a garage behind that house, which had been converted into a two-floor apartment.

Ptl. Borges knocked on the door. Less than a minute later, Ptl. Adam saw a curtain pulled back, a black woman peer out, and immediately draw the curtain. He informed Ptl. Borges of his observation. The other officer continued to knock and, within a few seconds, a young black girl who appeared to be nine or ten years old answered the door. Ptl. Borges asked if her parents were home, and she responded that her mother was home. He then asked her to have her mother come to the door. From his vantage point, Ptl. Borges observed a kitchen area immediately inside the front door, behind which was a door to what appeared to be a bedroom. To the left, the officer could see a living room area and another door behind that which appeared to be another bedroom.

Ptl. Borges observed an older white female by the door to the rear bedroom. It appeared to him she was speaking with someone. She came to the door and identified herself as the babysitter. Ptl. Borges asked her if anyone else was in the apartment, to which she responded "no." Both officers testified that based on their observations and the information they had received from the young girl, they believed the babysitter was lying about whether there were other occupants in the apartment. Ptl. Borges believed the tip was corroborated by the presence of the girl, multiple adults in the apartment, and the babysitter being deceitful. He expressed a concern for his safety and that of the girl because he was unaware of the number of people in the apartment and his "training and experience" had taught him that weapons may be involved with narcotics-related offenses.

Ptl. Borges asked the babysitter to have everybody else in the apartment come out, to which she again asserted that no one else was there. He then saw the door to the back bedroom move. He entered the apartment, drew his firearm, and directed the girl to go into the other bedroom, which appeared to be an unoccupied child's bedroom, because he believed she would be safer there. Officer Adam entered the apartment behind him and stayed with the babysitter for officer safety.

Ptl. Borges identified himself as a police officer and directed whoever was in the back bedroom to come out. A man, later identified as defendant, peeked out from behind the door, and the officer ordered him to exit the bedroom and show his hands. Defendant did so, and the officer had him sit in a chair in the living room area with Ptl. Adam and the babysitter.

Ptl. Borges then entered the back bedroom to see if anyone was there. He observed a closed closet, opened it, and found a black female standing inside who he later identified as the child's mother. He directed her to join the others in the living room with Ptl. Adams.

He then looked under the bed, a "common hiding place," to see if there were any other occupants. He observed a cigarette burning in an ashtray. Concerned it could start a fire, the officer pulled the ashtray out from under the bed. He observed ashes, cigarette butts, pieces of burnt "Chore Boy" copper mesh, commonly used as a filter in homemade crack pipes, and a torn piece of plastic.

The officer returned to the living room and asked the child's mother why she had been hiding in the closet. She said she was frightened when she saw police so she went and hid there. Ptl. Borges told her about the paraphernalia he had found in the ashtray and advised her about the tip. He further told her he believed there was more drug paraphernalia and possibly narcotics in the apartment, and asked if she would show him if there was anything else there. She assented, led him to the back bedroom, and pointed out a small box under the bed. Inside the box he found a glass tube pipe, a plastic bottle made into a pipe, a metal pushrod, and a spoon.

All three adults were formally arrested, defendant was searched, and the officers found in his possession three Xanax tablets for which he did not have a prescription. Defendant was charged with possession of CDS for the Xanax, and a disorderly persons offense for use or possession of the paraphernalia found in the smoking ashtray. Officer Borges waited for an adult family friend to pick up the young girl.

The judge issued an order and written opinion on October 20, 2010, denying defendant's motion to suppress. He found the police lawfully entered the apartment consistent with the community caretaking doctrine as articulated in State v. Bogan, 200 N.J. 61 (2009), stating:

The officers' conduct in this case was reasonable. They received a tip that crack cocaine was being smoked in the presence of a juvenile. They went to the home, corroborated the presence of the juvenile, and felt that the child may be in danger, since the babysitter in the home was obviously lying to the officers about the presence of other adults in the home. The hiding in the closet, the hiding in the bedroom and the quick peeking out from the window all provide the circumstances which justify the police actions here.

The judge also found the plain view exception applied to the paraphernalia Ptl. Borges found under the bed, and defendant was validly searched incident to a lawful arrest.

Defendant subsequently pled guilty and was sentenced as previously discussed. On appeal, defendant argues: (1) the officers had no legally acceptable reason to enter the apartment without a warrant and without permission; (2) the search following the discovery of the "Chore Boy" copper mesh was not consented to, and, lacking a warrant or exigent circumstances, the evidence recovered was not admissible; and (3) defendant should not have been arrested because the offense amount to a disorderly persons offense not committed in the officers' presence.

The State bears the burden of proving by a preponderance of the evidence the validity of a warrantless search. State v. Edmonds, 211 N.J. 117, 128 (2012). When reviewing the decision of a motion judge on a motion to suppress, we defer to the judge's findings "which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). An appellate court "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Mann, 203 N.J. 328, 336 (2010) (quoting Elders, supra, 192 N.J. at 243). Despite that deference, however, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions." Mann, supra, 203 N.J. at 337 (quoting Johnson, supra, 42 N.J. at 162). Furthermore, "a reviewing court owes no deference to the trial court in deciding matters of law." Mann, supra, 203 N.J. at 337 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)). For the reasons that follow, we are satisfied the motion judge was clearly mistaken in concluding the facts in evidence support a finding that the officers' actions were justified under the community caretaking exception to the warrant requirement.

In Edmonds, supra, 211 N.J. at 121, the Supreme Court recently upheld a trial court's determination that a warrantless search of a home was objectively unreasonable and could not be justified by the community caretaking exception to the constitutional warrant requirement. There, police went to Kamilah Richardson's second-floor apartment after receiving a call from her purported brother, identifying himself as "John Smith," expressing the belief that she was being beaten up by her boyfriend and he had a gun. Id. at 122-23. Four officers were met by Richardson at the downstairs door, and she repeatedly told them there was "no problem" and only her eleven-year-old son was there. Id. at 123. Richardson refused to consent to the police entering her apartment, and when the officers insisted they needed to enter and ascertain whether there were other occupants there "due to the nature of the call," she asked to first speak with her son. Ibid. The officers declined her request and directed the boy to unlock the door. Ibid.

One of the officers stepped into the apartment and observed the boy in the living room and a TV playing in the room to his left. Id. at 124. With his gun drawn, the officer entered the room and saw defendant sitting in a chair in front of the TV with a mattress on the floor near him. Ibid. He brought defendant to another room and patted him down for weapons, but none were found. Ibid. He left defendant there with police protection and searched the "immediate area" where defendant had been watching TV, discovering a gun under a pillow lying on the mattress, which defendant acknowledged was his. Ibid. Defendant was arrested for unlawful possession of the weapon. Ibid. Richardson advised police that her former boyfriend, not defendant, had threatened to kill her and her son the previous day, and insisted that defendant had not engaged in any act of domestic violence. Ibid.

We had remanded the case to the trial court for analysis under Bogan, supra, which was decided during the pendency of the appeal. The trial judge granted defendant's suppression motion, finding Bogan factually inapposite, as did we. Edmonds, supra, 211 N.J. at 126-27. In explaining the community caretaking exception to the warrant requirement, noting the Court's "narrow application of the doctrine in Bogan," Edmonds, supra, 211 N.J. at 144, and concluding the facts of Bogan were "in stark contrast" to the case before it, Justice Albin stated:

In Bogan, we specifically acknowledged that "[t]he community caretaking role of the police also extends to protecting the welfare of children." 200 N.J. at 75. In that case, police officers were taken to an apartment by a fourteen-year-old girl who claimed she had been sexually molested there. Id. at 78. When the police rang the doorbell to the second-floor apartment, a boy, appearing to be twelve years old and wearing pajamas, answered the door. Ibid. On a day when he would have been expected to be in school, the young boy told the police that he was home alone, even though a male voice could be heard in the background. Ibid. The boy "appeared nervous and uneasy" and gave inconsistent answers to simple questions concerning the whereabouts of his mother. Ibid. When the telephone rang inside the apartment's kitchen, the boy picked up the receiver and told the officers it was his father. Ibid. A police sergeant asked if he could speak with the boy's parent. Ibid. The boy agreed, and only then did the sergeant step into the apartment to take the telephone, while the other officers remained in the hallway.Ibid. From the sergeant's vantage point in the kitchen, he saw the defendant – who fit the description of the alleged sexual predator – in another room. Id. at 79. The defendant was arrested. Ibid.

We found that the "carefully modulated response of the officers, and of [the sergeant] in particular," was "objectively reasonable." Id. at 80. Importantly, Bogan did not involve the search for evidence or a weapon in a home. The police entered the apartment simply to speak with a parent by telephone to assure a child's safety and well-being. The entry for that limited purpose fell within "the well-accepted limits of the community caretaking exception to the warrant requirement." Ibid.

[Edmonds, supra, 211 N.J. at 142.]

In contrast, as noted by the Court in Edmonds, police entered Richardson's apartment against her will in response to an unverified 9-1-1 call "to assure the safety of the young boy," found him "unharmed, without any visible injuries or signs of distress and no indication of a domestic disturbance inside the apartment," but detained and frisked the defendant. Id. at 121, 143. Having found there was "no objective evidence that the residence had been the scene of domestic violence or that [] Richardson or her son were endangered[,]" i.e., "[h]aving investigated and failed to corroborate the report of domestic violence," the Court concluded the "officers had fulfilled their community-caretaking function." Id. at 143. Commenting that "[t]he community-caretaking doctrine is an exception to the warrant requirement, not a roving commission to conduct a nonconsensusal search of a home in the absence of exigent circumstances[,]" the Court admonished that the officers had to apply for a warrant supported by probable cause if they then wished to search Robinson's apartment for a gun. Ibid.

Here, too, police responded to an anonymous tip. The caller offered no basis of knowledge whatsoever, and the tip could well have been a prank call. The call was reported by dispatch as someone smoking crack cocaine in an apartment with a child living there, which did not suggest an immediate life-threatening situation. The recorded tip was not that persons inside the residence were smoking crack cocaine with a juvenile present, as Ptl. Borges perceived the tip, and which was credited by the court without explanation. The tip was not corroborated by anything more than the presence of adults and a nine or ten-year-old girl in the apartment. The woman peering out the window and then having the girl answer the door may have seemed odd, but can hardly be described as threatening.

Ptl. Borges described the girl as appropriately dressed, apparently well nourished, and unafraid. The officer did not ask her if she was "okay" even though his "concern with receiving the tip was for the . . . child present." He did not smell the odor of burning crack, with which he was familiar, or any other drug. Nor did he observe any drugs, drug paraphernalia or any weapons laying around, or "[a]nything that could potentially harm the child." Ptl. Borges also did not "hear anyone screaming for help" or "any loud music that would indicate a party." In fact, he admitted that prior to entering the apartment, "nobody presented themselves in a way that physically presented a danger" to him. Moreover, an adult promptly came to the door and claimed responsibility for the child as her babysitter. Ptl. Borges acknowledged that the babysitter was not staggering or slurring her speech, and appeared to be appropriately dressed. Thus, once the officers found there was inadequate evidence to corroborate the 9-1-1 call and determined the child's safety was not at issue, they had fulfilled their community caretaking function. If the officers wished to search the apartment or occupants for drugs, they had to apply for a warrant supported by probable cause.

Nevertheless, based on his belief that the babysitter was lying about the presence of other occupants, his observation of the back bedroom door "move" after he directed other occupants to come forward, and his generalized concern that there might be adults present who could possibly have weapons, based on the drug tip, Ptl. Borges crossed the threshold and entered the apartment, uninvited, with his service revolver drawn. Moreover, though purportedly concerned with the safety of the child, Ptl. Borges did not have her wait outside with Ptl. Adams, but sent her into a bedroom that he did not check to determine if it was safe until much later.

We are satisfied there was no objectively reasonable basis for the police to enter the apartment under the community caretaking exception to the warrant requirement. The evidence obtained through that warrantless search must be suppressed.

R

eversed and remanded.

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State v Sabatino

« Citation
DatSTATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD SABATINO,

Defendant-Appellant.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0565-09T4

October 19, 2012

Submitted March 7, 2012 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-01-0022.

Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the briefs).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress heroin seized during a warrantless search of his person incident to arrest, defendant Richard Sabatino pled guilty to third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1), and being under the influence of CDS without a prescription, a disorderly persons offense, N.J.S.A. 2C:35-10b. The plea agreement called for an undefined period of probation conditioned on ninety days' incarceration. The court, however, sentenced defendant to concurrent terms of two years probation, conditioned on sixty days of incarceration. The trial judge permitted defendant to apply for "CLAP," which we presume is the county's labor assistance program. See N.J.S.A. 2B:19-5. We reverse.

I.

Hackettstown Police Officer Brian Ficarra was the sole witness at the suppression hearing. Shortly after midnight on October 26, 2008, the officer was monitoring traffic while parked at the five-point intersection of Route 46, Route 604, and Mountain Avenue. The officer noticed defendant stumble and stagger across Route 46 in the middle of a block. Defendant looked like he was under the influence of "either alcohol or drugs." As he crossed, a minivan approached and defendant "all but walked into the back end of it . . . like he didn't even see it." Defendant made it to the other side of Route 46 and continued to the intersection with Willow Grove Street, where a car was stopped at the light. Defendant "appeared to know the subject who was driving that vehicle." Still "very stumbly, clumsy," defendant spoke briefly to the driver, then walked around the vehicle and entered it.

When the light turned green, the officer claimed, the driver turned right from the left-hand-turn-only lane, to travel west on Route 46. The officer then performed a motor vehicle stop. He informed the driver and defendant that the driver made an illegal turn, and defendant failed to put on his seatbelt. However, the court found, based on photographic evidence, that there was no dedicated left-turn lane, and the driver "could have turned in either direction." The officer testified that even if defendant had not entered a vehicle, he would have stopped and arrested him for disorderly conduct.

The officer detected the smell of alcoholic beverages and asked the driver to exit, so he could determine whether the odor came from the driver or defendant. The officer then questioned defendant, who admitted he had been drinking. He was slurring his words and had pinpoint pupils. He was also eating a roll and seemed oblivious to the food sticking to his face.

The officer then "placed him under arrest for disorderly conduct, being under the influence."¹ He allowed the driver to depart without issuing him any traffic complaints. He said the driver was "trying to do the right thing by his friend," and "simply trying to help a friend . . . that appeared to be intoxicated get home." When asked why he placed defendant in custody for the petty disorderly persons offense of disorderly conduct, the officer stated he did so because he did not have a summons book with him and he was concerned about defendant's physical state. He admitted the driver did not ask for the officer's aid.

Once defendant was placed in the back of the patrol car, the officer delivered a Miranda warning.² Defendant then admitted he had taken a prescription pain pill that was not prescribed to him. Based on this information, the officer decided to take defendant to the emergency room at a local hospital, to make sure he was not "suffering any ill effect from the intoxication or the narcotics he had taken." Before releasing him to the emergency room staff, the officer searched defendant and found two bags of suspected heroin.

The court denied defendant's motion to suppress the heroin.³ The court found there was probable cause to believe defendant was under the influence of drugs or alcohol, and his crossing the highway constituted hazardous conduct. The court concluded the officer was mistaken about the left-turn only lane, but was justified in conducting a traffic stop based on the seatbelt violation.

The court ruled the officer was justified in arresting defendant for disorderly conduct, consisting of defendant's public intoxication, which created a hazardous condition for himself or another. The court also said that "[t]he officer had every probable cause to stop this defendant and to arrest him for public intoxication." He found the officer's decision to arrest, as opposed to issue a summons, was reasonable in order to protect defendant and the public.

Defendant appeals and raises the following points:

POINT ONE

THE TWO SMALL BAGS OF DRUGS SEIZED FROM SABATINO'S POCKET WERE THE PRODUCT OF AN ILLEGAL ARREST AND SHOULD HAVE BEEN SUPPRESSED.

A. Ficarra Did Not Have Probable Cause To Believe That Sabatino Committed Disorderly Conduct When He Crossed The Street Without Using The Crosswalk Where There Was No Evidence That Any Member Of The Public Observed The Conduct.

B. At Most, Sabatino's Conduct Constituted Jaywalking, Which Is Not An Arrestable Offense.

POINT TWO

EVEN IF FICARRA REASONABLY BELIEVED THAT SABATINO WAS INTOXICATED, HE GROSSLY EXCEEDED HIS AUTHORITY TO RENDER ASSISTANCE TO INTOXICATED PERSONS UNDERN.J.S.A. 26:2b-16 BY SUBJECTING SABATINO TO CUSTODIAL ARREST AND A FULL-BLOWN SEARCH.

II.

We defer to the trial court's factual findings on a motion to suppress, unless they were "clearly mistaken" or "so wide of the mark that the interests of justice require[] appellate intervention." State v. Elders, 192 N.J. 224, 245 (2007) (citation and quotation omitted). However, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). It is on that basis that we part company with the trial court.

We conclude the officer did not have probable cause to arrest defendant after he stopped the vehicle in which defendant was riding as a passenger. The heroin seized during the search incident to arrest at the emergency room should have been suppressed as the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415-16, 9 L. Ed. 2d 441, 453 (1963).

The State argues the officer had probable cause to arrest defendant for disorderly conduct when he crossed Route 46 and almost walked into a passing vehicle, N.J.S.A. 2C:33-2; and for the motor vehicle violation of failing to use a cross-walk. N.J.S.A. 39:4-33. We disagree.

"Probable cause exists if at the time of the police action there is 'a well grounded suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (citation omitted). In assessing the constitutionality of a search or seizure, we must assess whether the police officer's actions were objectively reasonable. State v. Bruzzese, 94 N.J. 210, 220 (1983). If an officer makes a mistake of law, and erroneously perceives undisputed facts to constitute a violation of law, then a search or seizure based on that perceived violation is not objectively reasonable. State v. Puzio, 379 N.J. Super. 378, 383-84 (App. Div. 2005) ("where an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop"). In Puzio, we determined an officer unconstitutionally stopped a passenger vehicle used for commercial purposes that did not display business-identifying information; the officer mistakenly believed all commercial vehicles had to display such information, and was unaware that passenger vehicles were exempt. Id. at 381-82.

In this case, Officer Ficarra lacked probable cause to believe defendant committed disorderly conduct because he mistakenly applied a key element of the statute. A person commits the petty disorderly persons offense of disorderly conduct "if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he . . . [c]reates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor." N.J.S.A. 2C:33-2a(2).⁴ The key element that was missing here was proof that defendant's actions "serve[d] no legitimate purpose of the actor."

The State would apparently equate "legitimate" with "lawful," and argue that there was probable cause to believe defendant committed what is commonly known as jaywalking. N.J.S.A. 39:4-33. Consequently, defendant could have had no "legitimate" purpose in crossing Route 46. On the other hand, an "act which serves no legitimate purpose of the actor" may mean acts that are performed solely to create "a hazardous or physically dangerous condition[.]" N.J.S.A. 2C:33-2a(2). Had the Legislature intended to mean "lawful purpose" it could have said so, instead of using the distinct formulation, "legitimate purpose."

In view of this apparent ambiguity, we may consider extrinsic materials. See, e.g., Cast Art Indus., LLC v. KPMG, LLP, 209 N.J.208, 222 (2012) ("[I]f the language selected by the Legislature is ambiguous or admits of more than one plausible interpretation, courts may turn to extrinsic evidence such as legislative history to discern the legislative intent."). As our disorderly conduct provision,N.J.S.A. 2C:33-2a(2), substantially mirrors section 250.2(1)(c) of the Model Penal Code (MPC), we may be guided by the commentary to that MPC section. See State v. D.A., 191 N.J. 158, 167 (2007) (court may rely on MPC commentary in interpreting New Jersey criminal statutes based on MPC provision).

The MPC commentary reflects that MPC § 250.2(1)(2) was designed to address mischief for the sake of mischief, which creates hazardous or physically dangerous conditions.

Subsection (1)(c) covers one who, with purpose to create public inconvenience, annoyance, or alarm or in reckless disregard of the risk of doing so, "creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." This provision reaches setting off "stink bombs," strewing garbage, nails, or noxious substances in public passages, turning off lights in an occupied theater, and an endless variety of public annoyances that mischief can conceive.

[Model Penal Code and Commentaries: Part II, § 250.2 at 347 (1980).]

The MPC drafters intended to exclude activities that serve purposes other than making dangerous mischief.

The provision is expressly limited to acts that "serve no legitimate purpose of the actor." For example, the maintenance of a tannery, dump, or other odorous business might constitute a public nuisance, but it would not be punishable under this subsection. Similarly, speaking on a public street might occasion inconvenience to passers-by but would not constitute an offense under this provision.

[Ibid.]

In recommending the adoption of this provision, the New Jersey Criminal Law Revision Commission (Commission) amplified the MPC example, and clarified that a person's acts could serve purposes that were both unlawful and legitimate.

It seems preferable to try to achieve as much definition as is practicable, and       

especially, in Subsection c, to make it clear that not all discomforting activities are criminal. For example, the maintenance of a tannery, dump, or other odorous business might create public discomfort or violate the zoning laws, but it would not be punishable as disorderly conduct since this Subsection expressly excludes acts which serve a legitimate purpose of the actor.

[2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:33-2, at 295 (1971) (emphasis added).]

In other words, a tannery owner's business operations may create a hazardous or physical condition, and may violate zoning laws, but if the operations serve the owner's legitimate business purposes, then the owner does not commit disorderly conduct. Likewise, defendant here may have "create[d] a hazardous or physically dangerous condition," N.J.S.A. 2C:33-2a(2), by crossing the highway; he may have "recklessly" created at least a risk of "public inconvenience, annoyance or alarm," N.J.S.A. 2C:33-2a, by almost walking into the side of the minivan; and he may have violated N.J.S.A. 39:4-33 in doing so. However, defendant had a legitimate purpose in stumbling across Route 46 — to get to the other side.

We also draw support for our view from the Legislature's determination not to adopt MPC § 250.5, proposed by the Commission as § 2C:33-5, which would have prohibited public drunkenness. The provision would have made it a petty disorderly persons offense if a person "appears in any public place manifestly under the influence of alcohol, not therapeutically administered, to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity." 1 Final Report of the New Jersey Criminal Law Revision Commission, § 2C:33-5, at 113 (1971). The Commission apparently proposed the public drunkenness provision because the disorderly conduct provision was not intended to reach that kind of conduct. We would violate the Legislature's apparent intent if we imported into the disorderly conduct statute behavior that the Legislature chose not to proscribe expressly. We note also the Legislature later expressly prohibited municipalities from adopting legislation creating an offense of public intoxication.N.J.S.A. 26:2B-29.⁵

Nor are we persuaded by the State's argument that a different result is compelled by our decision in State v. Oliver, 320 N.J. Super. 405, certif. denied, 161 N.J. 332 (1999), where we affirmed a conviction for disorderly conduct under N.J.S.A. 2C:33-2a(2). The case involved surfers who       

violated a Spring Lake ordinance barring entry into the ocean waters in the wake of a hurricane. The defendants defied repeated and explicit requests by police to desist and leave the water. We held the evidence supported defendant's convictions under N.J.S.A.2C:33-2a(2), stating:

Defendants entered the water to surf when the beach was closed — the lifeguard stands were down and pulled back nearly off of the beach. More egregiously, despite the hour-long effort of at least six Spring Lake police officers, defendants chose to ignore the officers and remain in the water until the Coast Guard intervened. As a result of remaining in the dangerous surf, defendants created a dangerous condition, or, at the very least, a risk thereof, to themselves and the police and lifeguard personnel who would have been required to save defendants had an emergency arisen. Furthermore, defendants' actions restricted the police's and lifeguards' activity for an extended period of time, obstructing their ability to attend to their normal duties.

[Id. at 421-22.]

We did not expressly discuss why the surfers' actions served no legitimate purposes of the surfers. However, Oliver may stand for the proposition that a fact-finder may conclude that an actor's repeated and direct disobedience of a law enforcement officer's command to desist from an activity does not serve the actor's legitimate purposes. Compare Commonwealth v. Roth, 531 A.2d 1133 (Pa. Super. Ct. 1987) (protesters' entry into a church to disturb its occupants, despite police commands not to enter, served no "legitimate purpose" under disorderly conduct statute), with Commonwealth v. Feigenbaum, 536 N.E.2d 325, 328 (Mass. 1989) (Commonwealth failed to prove protesters' actions blocking vehicle at Air Force base, in defiance of police commands to disperse, lacked "legitimate purpose," since actions may be both criminal and "have [the] legitimate purpose" of expression on a public issue).

We also reject the State's argument that the officer was authorized to arrest defendant for violating N.J.S.A. 39:4-33, the jaywalking statute, or N.J.S.A. 39:3-76.2f(a), the seatbelt law. A law enforcement officer is authorized by statute to arrest, without a warrant, a person "violating in his presence . . . any provision of chapter 3" or "chapter 4" of Title 39. N.J.S.A. 39:5-25. However, the Supreme Court has explained that the arrest power for minor traffic offenses, although not expressly qualified in the statute, is not unbridled, and must be exercised in a way that does not violate the constitutional rights of citizens. State v. Pierce, 136 N.J. 184, 190-93 (1994).

"[D]anger to the public safety is one of the significant factors that informs a police officer's decision whether to arrest or issue a summons in respect of traffic offenses." Id. at 207. Arrest may also be justified to assure the suspect's appearance in court, particularly if incarceration is a potential sanction for the violation. Ibid. See also State v. Hurtado, 219 N.J. Super. 12, 27-28 (App. Div. 1987) (Skillman, J., dissenting) ("[I]t may be concluded that some offenses, such as illegal parking, jaywalking, and littering, do not pose a sufficiently grave threat to the public welfare to warrant even the temporary detention of an alleged offender pending the posting of bail.") (emphasis added), rev'd on basis of dissent, 113 N.J. 1 (1988).

Applying this standard, there were insufficient grounds to arrest defendant for violating N.J.S.A. 39:4-33, the jaywalking statute, or N.J.S.A. 39:3-76.2f(a), the seatbelt law. There was certainly probable cause to believe a jaywalking violation had occurred, which authorized the officer to stop the vehicle that defendant had entered. Brendlin v. California, 551 U.S. 249, 257, n.3, 127 S. Ct. 2400, 2407 n.3, 168 L. Ed.2d 132, 140 n.3 (2007) ("Of course, police may also stop a car solely to investigate a passenger's conduct."). Yet, there was no basis to believe before the officer placed defendant in custody, that he was unsafe, or posed a continuing threat to the safety of others. Instead, he was in the vehicle with a driver whom the officer presumed was defendant's friend. Moreover, the officer's lack of a summons book was no excuse to subject a person to an otherwise unwarranted arrest.⁶

The officer may also have been justified in stopping the vehicle, and inquiring as to defendant's welfare, in the exercise of the community caretaking function. See, e.g., State v. Washington, 296 N.J. Super. 569, 572 (App. Div. 1997). However, the circumstances did not authorize defendant's arrest on that basis. Only after the illegal arrest andMiranda warning did defendant disclose his consumption of prescription medicine that may have raised health concerns in the officer's mind about its interaction with alcohol. It was only then that the officer acquired an otherwise valid basis to arrest for a violation ofN.J.S.A. 2C:35-10b. And it was only then that the officer determined that defendant should be transported to a hospital. There also is no evidence that pre-arrest, the officer detected sufficient signs of incapacitation to justify removing defendant from his friend's vehicle, and transporting him to "an intoxication treatment center or other facility." N.J.S.A. 26:2B-16.

Although defendant did not appeal the court's order denying suppression of the custodial statement, the subsequent arrest and seizure of the heroin were still fruits of the illegal arrest and should have been suppressed.

Reversed and remanded. We do not retain jurisdiction.

1 It appears that at this point defendant was only charged with disorderly conduct, N.J.S.A. 2C:33-2, and not N.J.S.A. 2C:35-10b. The State asserts that defendant was arrested for disorderly conduct. The officer referred to defendant "being under the influence" apparently as support for the arrest for disorderly conduct, as opposed to arrest for an independent offense.

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

3 The court also denied defendant's motion to suppress his custodial statement, but that decision is not the subject of defendant's appeal.

4 The State does not contend there was probable cause to arrest for violating N.J.S.A. 2C:33-2a(1), which involves "[e]ngag[ing] in fighting or threatening, or in violent or tumultuous behavior," or N.J.S.A. 2C:33-b, which involves offensive language.

5 The trial court therefore erred in its finding that the officer had probable cause to arrest defendant for "public intoxication," as our laws no longer criminalize such behavior, as distinct from being under the influence specifically of CDS. N.J.S.A. 2C:35-10b.

6 The officer could have taken defendant's address and identifying information and mailed a summons after the officer retrieved a summons form.

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