STATE OF NEW JERSEY v. CHRISTOPHER J. BARLOW
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4132-05T54132-05T5
STATE OF NEW JERSEY,
CHRISTOPHER J. BARLOW,
Submitted February 27, 2007 - Decided March 12, 2007
Before Judges Weissbard and Graves.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Docket No.
Bruce C. Hasbrouck, attorney for appellant.
Sean F. Dalton, Gloucester County Prosecutor,
attorney for respondent (Joseph H. Enos, Jr.,
Assistant Prosecutor, on the brief).
Defendant Christopher Barlow appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), and refusing to take a breathalyzer test, N.J.S.A. 39:4-50.2, after a trial de novo in the Law Division. We affirm.
At approximately 1:50 a.m. on July 17, 2005, Patrolman Shirey, who had been a member of the West Deptford Township Police Department for more than four years, was traveling on the entrance ramp to Route 295 when he observed the vehicle defendant was driving traveling "at a high rate of speed." Patrolman Shirey testified as follows:
Q. Upon observing this, what did you do next?
A. I followed the vehicle and tried to catch up to it, and paced myself behind it to try to tell how fast it was going. I believe there was speeding over the limit. I positioned myself behind the vehicle and stayed at a constant distance and my speedometer was between 90 and 95 miles an hour.
. . . .
Q. From making that observation, what did you do next?
A. I turned on my emergency lights to stop the vehicle.
Q. What was the reason that you were initiating effecting this stop?
A. For a speeding violation.
Q. What do you do next after your overhead lights go on?
A. I see that the vehicle began to brake. I noticed that the brake light was partially out, and the vehicle started to pull over to the side of the road.
Q. Once you get over to the side of the road, what happens next?
A. I approached the vehicle and the driver. . . . I asked the driver for his license, registration and insurance card.
. . . .
Q. You've now identified the driver of this vehicle. What do you do next? Do you ask this [d]efendant any questions at this point in time?
A. I asked him if he knew why I was pulling him over, and he told me that he knew that he was driving fast.
Defendant elected not to testify, and he did not call any witnesses to refute Patrolman Shirey's testimony. After the municipal court judge denied his motion to suppress, defendant entered a conditional guilty plea to DWI and refusing to submit to a breathalyzer test. Defendant was sentenced as a second offender to a two-year suspension of driving privileges, and the court also imposed the statutorily mandated fines, penalties, and assessments.
On appeal to the Law Division, defendant's attorney argued that the officer's "net lay opinion without any foundation" was insufficient to justify the stop. But the Law Division judge found the stop was warranted because Officer Shirey had a reasonable and articulable suspicion defendant was speeding.
On appeal to this court, defendant presents the following arguments:
THE CALIBRATION CERTIFICATES MARKED S-1 AND S-2 WERE INAPPROPRIATELY ALLOWED TO BE REFERENCED, UTILIZED, AND OTHERWISE MARKED. THE DOCUMENTS WERE NOT PROVIDED IN THE STATE'S DISCOVERY[.]
THE NON[-]EXPERT TESTIMONY PROVIDED BY THE STATE DID NOT PROVIDE SUFFICIENT FACTS FOR A FINDING OF PROBABLE CAUSE TO PULL OVER AND STOP THE DEFENDANT[.]
NOT PRESENTED BELOW
THE MUNICIPAL COURT PROVIDE[D] A BASIS OR REASONING FOR ACCEPTING OR FINDING THE OFFICER'S TESTIMONY CREDIBLE AS TO HIS OPIN[I]ON THAT DEFENDANT WAS SPEEDING[.]
After reviewing the entire record and the applicable law, we conclude defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm with only the following comments.
A police officer is justified in stopping a motor vehicle when he or she "has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed.2d 660, 673 (1979)). This standard requires less objective evidentiary justification than the probable cause test. See State v. Pineiro, 181 N.J. 13, 20 (2004) (stating that an investigatory stop based upon reasonable suspicion of unlawful conduct "need not rise to the 'probable cause necessary to justify an arrest'") (quoting State v. Nishina, 175 N.J. 502, 511 (2003)).
To satisfy the articulable and reasonable suspicion standard, it is not necessary for the State to prove that the suspected motor vehicle violation occurred. Locurto, supra, 157 N.J. at 470. See State v. Williamson, 138 N.J. 302, 304 (1994) ("[T]he State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense."); State v. Pitcher, 379 N.J. Super. 308, 311 (App. Div. 2005) (holding that motor vehicle stop based on mobile data terminal check of defendant's license plate number was objectively reasonable even though the data base entry showing defendant's driver's license was suspended was erroneous), certif. denied, 186 N.J. 242 (2006).
"It is clear that based on adequate visual observation an ordinary witness can state his conclusion of whether a car was moving fast or slow or give an estimate of its speed." Pierson v. Frederickson, 102 N.J. Super. 156, 162 (App. Div. 1968). In this case, the record fully supports the determination by both the municipal court judge and the Law Division judge that Officer Shirey's observation of defendant operating his vehicle provided a sufficient factual foundation for a reasonable and articulable suspicion that defendant was speeding.
March 12, 2007