STATE OF NEW JERSEY v. DAVID ZIMMERMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2857-04T12857-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID W. ZIMMERMAN,

Defendant-Appellant.

____________________________________

 

Argued December 12, 2005 - Decided

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, 04-038.

Peter H. Lederman argued the cause for appellant (Lomurro, Davison, Eastman and Munoz, attorneys; Mr. Lederman, on the brief).

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Michael M. Rubbinaccio, Morris County Prosecutor, attorney; Joseph P. Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, David Zimmerman, appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a)(1)(ii), after a trial de novo in the Law Division.

On July 17, 2004, defendant was issued a summons for DWI and failure to keep right, N.J.S.A. 39:4-82, by Madison Patrolman, James Cavezza. After his arrest, defendant submitted to a breathalyzer that resulted in a blood alcohol concentration reading of .19%. Defendant filed a motion in the municipal court seeking to suppress evidence of his intoxication that was obtained subsequent to the stop on the basis that the patrolman did not have a reasonable and articulable suspicion to make the motor vehicle stop.

The only individual who testified at the suppression hearing was Patrolman Cavezza. He testified that while on motor vehicle patrol at approximately 1:29 a.m. on July 17, 2004, he observed a black Jaguar automobile driving about two car lengths in front of him on Park Avenue, Madison. The car turned left from Park Avenue onto Elm Street. As it turned, both of the car's driver-side tires crossed over the double yellow lines at the intersection at Elm Street. Cavezza did not observe any obstructions in the roadway that would have required the operator of the Jaguar to cross over the center line. Cavezza turned onto Elm Street, and followed the vehicle until the vehicle turned right onto Page Street. Cavezza continued on Elm Street, and stopped at a traffic light at the intersection of Elm Street and Madison Avenue. While stopped, Cavezza observed the same Jaguar turn right from Morris Place onto Madison Avenue. The officer turned right and followed the Jaguar on Madison Avenue. Madison Avenue is a two-lane road, one in each direction, divided by double yellow lines. While following the vehicle, Cavezza again observed the driver-side tires and about one foot of the width of the vehicle, cross over the double yellow lines for a short distance. Cavezza activated his patrol car video camera, and continued to follow the vehicle for a short distance on Madison Avenue where he observed the vehicle drift within its own lane, signal a left turn, and turn left onto Twombly Lane. After turning onto Twombly, Cavezza activated his overhead lights, and the vehicle continued for a short distance into the driveway of defendant's residence. At conclusion of Cavezza's testimony, the videotape was admitted into evidence.

On October 12, 2004, Municipal Judge Troxell determined that the Jaguar vehicle, observed by Cavezza, turning from Park Avenue onto Elm Street was the same vehicle that the patrolman observed turning from Morris Place onto Madison Avenue; that the vehicle had crossed over the center double yellow lines twice; and had drifted within its own lane as observed by the judge on the videotape. Judge Troxell denied the motion, concluding that Patrolman Cavezza had a reasonable, articulable suspicion that defendant had violated traffic laws sufficient to support the stop of defendant's motor vehicle.

After denial of the motion to suppress, defendant entered a conditional guilty plea to the charge of DWI. The court suspended defendant's driving privileges for seven months, directed defendant to serve a period of twelve hours at an approved Intoxicated Driver Resource Center, and assessed appropriate fines and penalties. Defendant also pled guilty to the summons for failure to keep right, which was merged with the DWI on sentencing. The sentence was stayed pending appeal.

On appeal de novo to the Law Division, defendant renewed his motion to suppress the evidence concerning his intoxication on the same grounds argued in the municipal court. On January 21, 2005, after making independent findings of fact, Judge Ahto rendered an oral decision denying the motion to suppress, concluding that the arresting officer had a reasonable and articulable suspicion to stop the motor vehicle:

The defendant had been traveling west on Park, and the officer was behind him. He was in a marked patrol car. The officer observed the defendant make a left-hand turn on Elm Street, and he continued to travel behind him. He did [not] tell us whether the defendant had signaled or not signaled. And that apparently was of no significance to the officer, because he did [not] make mention of it.

But he did observe the defendant in his vehicle cross over the double yellow line. The two driver's side tires crossed the double yellow line. About a foot of the car also crossed, and then it came back, and that drew his attention. He indicated he saw both tires cross . . . the line, the center line.

. . . .

He indicated that Mr. Zimmerman turned off onto Page Street, and that he continued on Elm Street up to Madison Avenue.

He, thereafter, indicated that he observed the vehicle, and at first he described it as a black Jaguar or a black vehicle, but he . . . did indicate, there's no dispute, that it was the same vehicle. He saw that vehicle come out and turn right on Morris Place.

. . . .

[H]e starts to follow the vehicle, and he [is] behind the vehicle again, and as he [is] behind the vehicle again, and he [is] following him, the vehicle again goes over the double yellow line. And this is the double yellow line on Madison Avenue when he [is] behind him.

He observed the vehicle cross the double yellow lines[,] both driver's side tires. And at that point, he activated his mobile vision.

So by activating his mobile vision, the inference is, in my view, that the officer felt he was observing some irregular operation of a motor vehicle, and he wanted videotape proof of what was going on.

I mention that because if this was a complete fabrication, and he did [not] really think that there was a reasonable belief that motor vehicle violations had occurred, why in the world would somebody activate a mobile vision camera to substantiate a non-violation.

At any rate, he activated the mobile vision camera. Counsel is right when he says it [is] some distance. He [is] not close enough to make real up close observations. But in my view, when - - and I [am] just talking about the first eight to ten seconds, and I do [not] think it [is] anymore than that, you can see the Jaguar, or the black vehicle, however you want to describe it, kind of near the center of the roadway. And it seems to drift off to the right.

. . . .

The articulable reasons or particularized suspicion must be made based upon the law enforcement officer's assessment of the totality of the circumstances.

Great emphasis has been placed upon the two over the lines. I [am] bringing in the third thing, which is the circuitous route actually for a brief period of time coming back. That [is] part of the observations and the totality of the circumstances. And we know what the officer's view was at, because he started to follow the defendant again. And he at one point activated his video camera.

. . . .

If I consider the totality of the circumstances and the test being the reasonable articulable suspicion, for the reasons I [have] stated, I think he had the right to stop the vehicle. He did not have probable cause up until the stop to believe that he was operating under the influence. But I think and find there was reasonable, articulable suspicion to stop the vehicle. And I [am] not going to suppress the stop for the reasons I [have] said.

After the denial of the motion to suppress, defendant was convicted of DWI, and the court imposed the same penalties as below. The court stayed sentence pending disposition of this appeal.

On appeal, defendant argues:

POINT I

THE STATE CANNOT JUSTIFY THE STOP OF THE DEFENDANT'S VEHICLE AS IT CANNOT DEMONSTRATE A REASONABLE AND ARTICULABLE SUSPICION THAT THE DEFENDANT'S OPERATION AMOUNTED TO A VIOLATION OF LAW.

POINT II

THE INFERENCE RELIED UPON BY THE COURT, THAT THE DEFENDANT FOLLOWED A "CIRCUITOUS ROUTE" WAS UNREASONABLE AND NOT BASED UPON THE EVIDENCE.

A. THE COURT'S INFERENCE THAT DEFENDANT ATTEMPTED TO AVOID DETECTION BY OFFICER CAVEZZA IS INAPPROPRIATE BASED UPON THE FACTS OF THE CASE.

B. EVEN ASSUMING THE COURT'S INFERENCE THAT THE DEFENDANT DROVE A CIRCUITOUS ROUTE TO AVOID DETECTION IS APPROPRIATE, THAT FINDING IS IRRELEVANT AND IMMATERIAL TO THE ISSUE OF WHETHER OFFICER CAVEZZA HAD REASONABLE SUSPICION TO STOP DEFENDANT'S CAR.

Appeals from the Municipal Court to the Law Division are de novo. R. 3:23-8. The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge must make his or her "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). The trial judge's function differs from this court's function. "His [or hers] is not the appellate function governed by the substantial evidence rule[,] but rather an independent fact-finding function . . . ." Ibid.

Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (internal citations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant argues "that the State cannot establish the requisite, reasonable and articulable suspicion needed to justify the stop of [d]efendant's vehicle." We disagree.

"The Fourth Amendment prohibits `unreasonable searches and seizures' by the Government," including investigatory stops of persons or vehicles, absent a showing of probable cause. United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740, 749 (2002). However, a limited exception for certain seizures of the person exists, if there is an articulable suspicion that a crime has been or is about to be committed. State v. Pineiro, 181 N.J. 13, 20 (2004). Such seizures are commonly called "Terry stops," and "[a] traffic stop is analogous to a Terry stop." United States v. Ruesga-Ramos, 815 F. Supp. 1393, 1397 (E.D. Wash. 1993) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334 (1984)). As such, "once [Patrolman Cavezza] activated his overhead lights and [defendant] pulled over, a stop took place." Id. at 1399. Accordingly, there must have been a reasonable, articulable suspicion that defendant was in violation of a law, in order to make that stop. State v. Golotta, 178 N.J. 205, 212-13 (2003); State v. Davis, 104 N.J. 490, 500 (1986).

A reasonable, articulable suspicion is less than probable cause. Golotta, supra, 178 N.J. at 213; Davis, supra, 104 N.J. at 501. In the traffic context, it constitutes a "particularized and objective basis" for believing that the motorist is or was committing a traffic violation. Davis, supra, 104 N.J. at 501. While Article I, paragraph 7 of the New Jersey Constitution may provide additional protections against unreasonable searches and seizures than does the Fourth Amendment, id. at 502, in New Jersey, the observation of a motor vehicle violation constitutes a reasonable, articulable suspicion and justifies an investigatory stop. State ex rel. D.K., 360 N.J. Super. 49, 54 (App. Div. 2003).

While "the State is not required to prove that the suspected motor-vehicle violation occurred," D.K., supra, 360 N.J. Super. at 54 (citing State v. Williamson, 138 N.J. 302, 304 (1994)), on a motion to suppress, the State carries the burden of demonstrating that a reasonable, articulable suspicion existed at the inception of the stop. Pineiro, supra, 181 N.J. at 19-20. That burden must be met by a preponderance of the evidence. Ibid. All circumstances and knowledge known to the police officer must be considered by the court in determining whether, by a totality of the circumstances, there was a reasonable, articulable suspicion. Davis, supra, 104 N.J. at 501.

In the present case, after determining defendant's motor vehicle crossed the double yellow lines on two separate occasions and observing the motor vehicle drift within its own lane, together with the circuitous route taken by defendant after first being observed by Patrolman Cavezza, the Law Division judge concluded that the patrolman had an articulable and reasonable suspicion that a traffic violation had occurred, and he had a reasonably objective basis for stopping defendant's vehicle. Defendant argues that the conduct observed by Patrolman Cavezza did not violate N.J.S.A. 39:4-82, failure to keep right, but rather may have violated N.J.S.A. 39:4-88(b), failure to maintain a lane. Defendant asserts that the language of the latter statute, "[a] vehicle shall be driven as nearly as practicable entirely within a single lane," permits movement over traffic lines for short periods of time and distances without violating the statute. Defendant argues that his conduct in crossing the center lines did not constitute a violation of the failure to maintain a lane statute. We find the argument without merit.

New Jersey courts have consistently held that the issue is not whether a defendant is guilty of the suspected violation after a determination in court, but whether the police officer had a reasonable, articulable suspicion, at the time the stop was executed, that a motor vehicle violation was afoot based on the totality of the circumstances, including his observations leading up to the stop. See D.K., supra, 360 N.J. Super. at 54; State v. Cohen, 347 N.J. Super. 315, 381 (App. Div. 2002); Murphy, supra, 238 N.J. Super. 546, 553-54 (App. Div. 1990).

Defendant argues next that the Law Division judge erred in concluding that defendant took a "circuitous route" in an attempt to avoid detection by Patrolman Cavezza when determining the totality of the circumstances confronting the arresting officer, and assessing whether the officer had a reasonable, articulable suspicion of a violation of law. If the trial judge's decision was based solely on the judge's assumption that defendant was attempting to avoid detection after being observed by the police officer, we would agree because there may be other reasons that defendant took the route that he did.

Here, however, we are satisfied that absent the trial judge's consideration concerning the "circuitous route" taken by defendant after first being observed by the police officer, there is sufficient evidence to sustain the State's burden on the motion to suppress based on the officer's observation of the vehicle crossing the center lines twice, and the vehicle drifting within its own lane as observed on the videotape. Abnormal operation of a motor vehicle establishes a reasonably objective basis to justify a motor vehicle stop. See State v. Cummings, 184 N.J. 84, 89 (2005) (motorist stop for crossing center line of traffic); State v. Widmaier, 157 N.J. 475, 481-82, 485-86 (1999) (DWI conviction upheld where motorist crossed center line in the early morning hours in a well-illuminated area with no traffic or obstacles that may have interfered with ability to stay in lane, in addition to turning without signal and skidding twice); State v. Stever, 107 N.J. 543, 546 (1987) (DWI conviction upheld where a police officer stopped a motor vehicle based solely on observation that, while not speeding, defendant was observed crossing the center line twice in the 35 M.P.H. zone), cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987).

 
We affirm substantially for the reasons stated by Judge Ahto in his oral decision of January 21, 2005. We conclude his findings (except that of inferring that defendant was attempting to avoid detection by taking a "circuitous route") are based upon sufficient, credible evidence contained in the record and could reasonably have been reached based upon that evidence. State v. Locurto, 157 N.J. 463, 472 (1999); Johnson, supra, 42 N.J. at 161-62.

Affirmed.

For the vehicle to proceed from Page Street where the officer last saw the vehicle to Morris Place, the vehicle would have had to take a circuitous route from Page Street onto Redman Street and then onto Morris Place before turning onto Madison Avenue.

We also reject defendant's argument that the officer erred in issuing a summons for 39:4-82, rather than 39:4-88(b). N.J.S.A. 39:4-88 applies to "a roadway [that] has been divided into clearly marked lanes for traffic," and drivers must stay in "the lane nearest the right-hand edge or curb of the roadway when that lane is available for travel, except when overtaking another vehicle or in preparation for a left turn." N.J.S.A. 39:4-88(a). In addition, "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety." N.J.S.A. 39:4-88(b). Since both Elm Street and Madison Avenue had only one lane in each direction, the roadway was not "divided into clearly marked lanes" and thus N.J.S.A. 39:4-88 is inapplicable. See Kendall v. Kendall, 218 N.J. Super. 199, 203 (App. Div. 1987) (holding N.J.S.A. 39:4-88(a) requires "vehicles on a multilane roadway to stay to the right . . . and pass only on the left." See also State v. Frankel, 42 N.J. Super. 7, 10-13 (App. Div. 1956). We conclude that the relevant motor vehicle statute for crossing the center line on a two lane roadway is N.J.S.A. 39:4-82, failure to keep right.

(continued)

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A-2857-04T1

December 28, 2005