STATE OF NEW JERSEY v. KIMBERLY MAHON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0288-07T40288-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIMBERLY MAHON,

Defendant-Appellant.

 

Argued May 12, 2008 Decided

Before Judges Graves, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. 06-100.

John Menzel argued the cause for appellant.

Paula C. Jordao argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Kimberly Mahon, appeals her driving while intoxicated (DWI) conviction, N.J.S.A. 39:4-50. Defendant had filed a motion to suppress in the municipal court, asserting the stop which resulted in her arrest was improper. The municipal court judge denied the motion, and after de novo review, Rule 3:23-8(a), the Law Division again denied defendant's motion to suppress and found her guilty of driving while intoxicated. R. 3:23. The issue raised for our consideration is whether the stop was a proper exercise in constitutionally permissible community caretaking functions. We agree that it was, and therefore affirm.

On July 23, 2006, at approximately 1:45 a.m., a veteran Madison Borough police officer approached a red light. He noticed the only other vehicle stopped at the intersection because, despite having the green light, it was not moving. The vehicle "was just sitting in the intersection," for "at least a minute." The officer's vantage point in his marked car was some fifty feet away. The driver looked towards the officer's car, then slowly proceeded through the intersection. The officer noted there were two occupants in the vehicle. He promptly stopped the driver, as he wanted "to make sure everything was okay within the vehicle," and because he felt he had just witnessed the driver committing the motor vehicle offense of obstructing traffic flow, N.J.S.A. 39:4-67.

I.

Defendant contends the stop was entirely unjustified and unwarranted. The State argued to the contrary, that the circumstances fall well within the community caretaking functions of law enforcement.

In State v. Goetaski, 209 N.J. Super. 362, 365 (App. Div.), certif. denied, 104 N.J. 458 (1986), Judge King noted that community caretaking requires police to deal with drivers in the context of a "so-called 'benign' automobile stop made to assist the occupant of the vehicle if necessary." In that case, police were found to have properly stopped a driver observed during early morning hours driving slowly with the left-turn indicator flashing on a fifty miles per hour rural roadway. Id. at 363.

After Goetaski, we upheld a stop under the theory of community caretaking where, after 2:00 a.m., a motor vehicle was being driven "at a snail's pace, . . . less than ten [m.p.h.]," through a residential area. State v. Martinez, 260 N.J. Super. 75, 77 (App. Div. 1992) (alterations in original). There we specified that the "abnormal" operation of the vehicle suggested a number of concerns including "something . . . wrong" with the driver or the vehicle, the creation of "a traffic safety hazard," or the possibility that homes were being "'cased' for targets of opportunity." Id. at 78. Balancing those concerns against the minimal intrusion involved in the stop, we found it to be objectively reasonable and constitutionally permissible within the meaning of community caretaking as defined in Goetaski. Martinez, supra, 260 N.J. Super. at 78.

In like manner, in State v. Washington, 296 N.J. Super. 569 (App. Div. 1997), we found a motor vehicle stop lawful where, at around 12:20 a.m., the driver was observed weaving within his lane of travel while proceeding at thirty-six miles per hour in a forty-five mile per hour zone. Id. at 571. Weaving at an atypically slow speed during the early morning hours raised a "reasonably objective basis" for the stop. Id. at 572. The operation of the vehicle presented a potential hazard to other drivers and therefore, in the proper exercise of community caretaking, the officer was expected to determine whether there was "either something wrong with the driver, with the car, or both." Ibid. Community caretaking is a function necessitated by "the ubiquity of the automobile and the dynamic, differential situations police officers are confronted with to promote driver safety." Ibid.

Defendant analogizes the circumstances of this stop, however, to those found in State v. Cryan, 320 N.J. Super. 325 (App. Div. 1999). In that case, the stop was found to be constitutionally flawed. Police were not engaging in a valid exercise of the community caretaking function where a driver hesitated for five seconds before proceeding through an intersection, making a slow left-hand turn, when a stoplight turned green, at 4:24 a.m. Id. at 327.

These circumstances are significantly different from those presented in Cryan, where the delay in proceeding through the intersection was only five seconds. In this case, the delay was more than sixty seconds. In Cryan there was no eye contact between driver and officer, in this case, the driver appeared to look right at the officer's marked car. Ibid. In Cryan there was no motor vehicle violation, in this case there was conduct that the officer considered to be within the scope of the obstruction of traffic statute. Id. at 331-32.

Defendant submits for our consideration two cases from other jurisdictions: State v. McAfee, 783 P.2d 874 (Idaho Ct. App. 1989) and Washington v. DeArman, 774 P.2d 1247 (Wash. Ct. App. 1989). Neither case adds anything to the doctrine of community caretaking as developed in our state, and in fact may be at variance with our own state's doctrine. They are not persuasive support for the conclusion defendant wishes us to reach. We believe our doctrine is the more sound in light of the need to balance public safety considerations against the minimal intrusion of a motor vehicle stop.

The stop was justified in this case because the length of the delay in proceeding through the green light during early morning hours was significant. The fact that the driver appeared to note the presence of a police car before proceeding only added to the officer's reasonably objective concern. The stop was therefore a legitimate exercise in community caretaking, albeit near the edge of the line drawn by Goetaski, supra, 209 N.J. Super. 362.

II.

The State also contends the stop was justified as the officer witnessed a violation of the motor vehicle laws. See State v. Hickman, 335 N.J. Super. 623, 634 (App. Div. 2000). The municipal court judge found, despite the absence of proofs as to other drivers on the street who may have been affected, that defendant was guilty of obstruction. The Law Division judge gave defendant "the benefit of the doubt" as to the offense, and vacated the conviction.

Nonetheless, the officer's observation of defendant committing a motor vehicle offense is a second, independent basis which makes the stop lawful. An officer clearly has the right to stop an automobile in order to issue a summons for a perceived motor vehicle offense. State v. Murphy, 238 N.J. Super 546, 553 (App. Div. 1990). The fact the conviction was vacated on appeal has no impact on the officer's authority to make the stop.

The unusual driving observed here raised the same legitimate concerns as in Goetaski, Martinez, and Washington. Whether based on the lawful exercise of the community caretaking function, or the authority to ticket a driver when an officer believes a motor vehicle violation has been committed, the stop passes constitutional muster when balanced against the minimal intrusion involved.

Accordingly, we affirm.

In the Law Division, defendant's conviction for obstructing the flow of traffic, N.J.S.A. 39:4-67, was vacated.

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A-0288-07T4

June 20, 2008