STATE OF NEW JERSEY v. SEAN M. KING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3814-04T13814-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN M. KING,

Defendant-Appellant.

_______________________________________

 

Argued May 1, 2006 - Decided May 24, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BP028773.

William N. Dimin argued the cause for appellant (Spector & Dimin, attorneys; Michelle Joy Munsat, of counsel and on the brief).

John J. Scaliti, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Scaliti, on the brief).

PER CURIAM

Defendant Sean M. King appeals from a judgment entered in the Law Division finding him guilty of driving under the influence of alcohol in violation of N.J.S.A. 39:4-50 and imposing certain fines and penalties. Defendant argues that the trial court erred by denying his motion to suppress evidence. We disagree and affirm.

On February 25, 2002, at about 12:24 a.m., Officer Bryan Dalton (Dalton) of the Bergenfield Police Department was on patrol and proceeding down Belford Avenue. Dalton observed a white male, who was later identified as Steven Shine (Shine), standing and urinating in the middle of the street. Dalton testified that Shine was standing about five feet from the rear bumper of a van, which was parked on the side of the street.

Shine became loud and belligerent. He told Dalton that that "this was bullshit" and started waving his arms in the air. Other officers were dispatched to the scene and they walked Shine over to the sidewalk. The officers calmed Shine down and arrested him. Dalton testified that Shine told him that he had been in the van parked on the side of the street. Dalton admitted, however, in cross-examination that he did not record Shine's statement in his police report.

Dalton testified that he went over to the van to speak to the defendant, who was sitting in the driver's seat. When he approached the van, Dalton observed that the keys were in the ignition. He also saw that the engine was running. Dalton asked defendant whether the "gentleman" in the street was with him and why defendant let his passenger out there rather than take him to a restroom. Dalton testified that he detected the strong odor of alcohol on defendant's breath. Dalton asked defendant for his license, registration and insurance. Dalton then asked defendant to perform certain field sobriety tests. Defendant was arrested and taken to police headquarters.

The municipal court judge granted defendant's motion to suppress the evidence obtained by the officers after their initial questioning of defendant. The judge found that there was no evidence that defendant was operating the vehicle when he was first questioned by Dalton. The judge further found that Dalton did not observe defendant engaging in any criminal or quasi-criminal conduct when he approached the van. The judge concluded that Dalton did not have probable cause to believe that defendant was violating the law when he approached the van. The judge also found that the officer's action was not justified as a community caretaking function.

The State moved for leave to appeal to the Law Division, which granted the motion and reversed the order suppressing the evidence. In his decision on the record on April 19, 2004, Judge John A. Conte found:

In the instant case, Officer Dalton's initial contact with the defendant was reasonable under the totality of the circumstances. Officer Dalton approached Shine, who was publicly urinating, and learned that he had been in the van parked a few feet away with his engine running. The officer merely conducted a routine field inquiry by walking over to the van driver's window. When Officer Dalton observed the odor of alcohol on defendant's breath, the encounter escalated from an inquiry to an investigative detention and then to an arrest.

Judge Conte further found that there was no evidence that the officer violated defendant's constitutional rights. The matter was remanded to the municipal court for further proceedings.

On remand, the parties stipulated to the relevant facts, including the results of the Breathalyzer test administered after defendant's arrest, which showed a blood alcohol level of .13. The only fact issue in dispute was whether the evidence established that defendant had been operating the vehicle. The municipal court judge determined that there was sufficient evidence to show "operation" of the vehicle and found defendant guilty of driving under the influence. The judge imposed a $500 fine, assessed court costs in the amount of $33, imposed a $50 Violent Crimes Compensation Board penalty, a $75 Safe Neighborhood Services Fee, a $100 assessment payable to the Alcohol Education Rehabilitation and Enforcement Fund, and a $100 surcharge. The judge also suspended defendant's driving privileges for two years and ordered that defendant spend between 12 and 48 hours at the Intoxicated Drivers Resource Center.

Defendant sought de novo review in the Law Division. In that appeal, Judge Donald R. Venezia found defendant guilty and imposed the same sentence that previously had been imposed by the municipal court judge. The order of judgment was entered on March 18, 2005.

On this appeal, defendant raises the following contentions:

POINT ONE: THE LAW DIVISION ERRED AS A MATTER OF LAW IN REVERSING THE LOWER COURT'S GRANTING OF DEFENDANT'S MOTION TO SUPPRESS.

A. THE ACTIONS OF THE POLICE OFFICER CONSTITUTED A SEIZURE, THUS REQUIRING PROBABLE CAUSE, WHICH WAS NOT PRESENT.

B. THE LAW DIVISION JUDGE ERRED AS A MATTER OF LAW IN FINDING THAT THE ENCOUNTER BETWEEN THE OFFICER AND DEFENDANT WAS A "FIELD INQUIRY."

C. THE POLICE OFFICER'S APROACH TO DEFENDANT'S VEHICLE CANNOT BE JUSTIFIED AS "COMMUNITY CARETAKING."

We have carefully considered these arguments in light of the record before us. We are convinced that the contentions are without merit. We affirm the denial of the motion to suppress substantially for the reasons stated by Judge Conte in his decision on the record. We add the following.

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures by requiring warrants issued upon probable cause unless the search or seizure falls within one of the recognized exceptions to the warrant requirement. State v. Maryland, 167 N.J. 471, 482 (2001). However, not all encounters between a citizen and a police officer constitute a search or seizure for purposes of the warrant requirement. Id. at 483. A police officer may undertake a field inquiry "without grounds for suspicion" provided it is not conducted for an impermissible reason such as race. Ibid. (quoting State v. Contreras, 326 N.J. Super. 528, 538 (App. Div. 1999)).

A field inquiry is initiated when the officer approaches an individual on the street or in some other public place and asks if the person is willing to answer some questions. State v. Davis, 104 N.J. 490, 497 (1986). "A field inquiry is not considered a seizure 'in the constitutional sense so long as the officer does not deny the individual the right to move.'" State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Sheffield, 62 N.J. 441, 447 (1973)).

An investigatory stop "is considered more intrusive than a field inquiry." Ibid. A warrant is not required for such a stop if it is based on "specific and articulable facts which, taken together with rational inferences from those facts" provide a "reasonable suspicion of criminal activity." Ibid. (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). As the Supreme Court explained in Davis,

An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. 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 [the] 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.

[Davis, supra, 104 N.J. at 504.]

Here, the record supports the judge's determination that Dalton's initial encounter with defendant was a field inquiry which could be undertaken "without grounds for suspicion." Maryland, supra, 167 N.J. at 483. The evidence shows that Dalton found Shine urinating in the middle of a public street after midnight. Dalton testified that Shine informed him that he had been in the van that was parked a few feet away, with its engine running. Although Dalton did not record the statement in his report, neither the municipal court judge nor the Law Division Judge who heard the appeal on the suppression motion discounted Dalton's testimony on this point. Dalton approached the passenger window of the van to ask defendant why he let Shine out of the van in order to relieve himself in the street, rather than take him to a restroom. Contrary to defendant's assertion, there is no evidence that the officer detained defendant. Considering the totality of the circumstances, we are satisfied that the encounter was not an "investigatory stop" and Dalton did not require reasonable suspicion of criminal activity in order to make his initial inquiry of defendant concerning Shine.

We reached a substantially similar conclusion in State v. Sirianni, 347 N.J. Super. 382 (App. Div.), certif. denied, 172 N.J. 178 (2002). In that case, the police officers were conducting a stakeout of a home where they believed a homicide suspect would be returning. Id. at 385. The officers observed the defendant drive his car into the area and park along the curb in the vicinity of the house. The defendant turned off his lights and sat back in his seat. The defendant was apparently asleep and something was burning in the ashtray of the vehicle. Ibid. The officers knocked on the window to get defendant's attention. Defendant appeared "startled and disoriented." Ibid. The officers learned from a computer check that the vehicle was registered to the defendant. They asked defendant for his credentials and, when he opened the glove compartment, they observed what appeared to be marijuana in defendant's pocket. Id. at 386. The officers asked for some personal identification and defendant directed them to a black bag on the front passenger seat. In the bag, the officers found marijuana and strips of paper with LSD. The judge denied defendant's motion to suppress the CDS. We upheld that determination, concluding that the officers' encounter with the defendant was a "field inquiry" for which no suspicion was required.

We noted in Sirianni that the determination of whether the incident constituted a "field inquiry" or an "investigative stop" must be based on the totality of circumstances. Id. at 390. We concluded that the "officers' action in requesting identification from the defendant required no constitutional justification." Id. at 391. We stated that, in view of the seriousness of the situation, "the officers would have been derelict in their duties if they had failed to investigate these events" and ascertained whether "defendant was in any way connected to the homicide under investigation." Ibid. We noted that the encounter between the police and the defendant involved a "minimal degree of intrusion." Id. at 392. We added:

The encounter never escalated into an investigative detention and never extended beyond a mere request for identification until the marijuana was seen in plain view, at which point probable cause for arrest existed. Before then, however, there were no restraints on defendant's movement and nothing in the encounter conveyed to defendant that he was not free to refuse the officers' request. On the contrary, the approach was non-offensive. No demands or orders were issued. Nor was the police conduct overbearing or harassing. The officers' request for identification was non-accusatory and contained no presupposed suspicion of criminal conduct that could convey to defendant that he was the subject of a particularized investigation. The exchange appears to have been unremarkable and non-confrontational: the officers knocked on the car window and, after defendant awoke and opened the door, they asked for his name and identification; in reply, defendant gave his name, responded that he lived across the street at the home of a friend, and leaned over to retrieve his driving credentials. Under the circumstances, we conclude that the officers' conduct did not require reasonable suspicion or other constitutional justification.

[Ibid.]

In this case, as in Sirianni, the encounter between Dalton and defendant involved a minimal degree of intrusion. There were no restraints on defendant's movement. Dalton's approach was non-offensive. Dalton made no demands and issued no orders. There is no evidence that Dalton acted in an overbearing or harassing manner. Moreover, Dalton's request for information did not contain any implication that he suspected that defendant was engaged in criminal activity or the subject of an investigation. We conclude, as we concluded in Sirianni, that Dalton did not "require reasonable suspicion or other constitutional justification" for his inquiry. Ibid.

 
In view of our determination that Dalton's encounter with defendant was a permissible field inquiry, we need not decide whether Dalton's inquiry also was justified as "community caretaking."

Affirmed.

(continued)

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A-3814-04T1

May 24, 2006