STATE OF NEW JERSEY v. BRYAN WERNTZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3015-08T43015-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRYAN WERNTZ,

Defendant-Appellant.

______________________________

 

Submitted October 6, 2009 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Municipal Appeal

No. 22-08.

James W. Kennedy, attorney for appellant.

Marlene Lynch Ford, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella,

Supervising Assistant Prosecutor, of counsel;

Thomas Cannavo, Senior Assistant Prosecutor,

on the brief).

PER CURIAM

Defendant was charged in Manchester Township with motor vehicle offenses, including driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50. He moved in the municipal court to suppress evidence on the ground that his Fourth Amendment rights had been violated when the police stopped his vehicle. The municipal court held a hearing and denied defendant's motion. Defendant then pleaded guilty to the DWI charge conditioned on his right to appeal denial of his motion to suppress.

On de novo review of the suppression motion, the Superior Court, Law Division, agreed with the ruling of the municipal court. Defendant now appeals to this court, arguing that the police officer who stopped his vehicle had no articulable and legally sufficient probable cause or reasonable suspicion to make the motor vehicle stop. We reject defendant's arguments and affirm.

The only witness at the suppression hearing was the Manchester Township police officer who had stopped defendant's vehicle. He testified that on January 11, 2008, at about 1:40 a.m., he was driving in his patrol car on State Highway 70. He saw a white pickup truck with its headlights on at the exit of a private shopping center. The truck was not moving, and the officer could not say specifically whether the motor was running, but he believed that the truck was about to pull out onto the highway. He looked into the truck for a second or two and saw the driver leaning forward. There was enough lighting in the area for the officer to see that the driver was not wearing a seatbelt.

Having decided to make a motor vehicle stop, the officer turned at a nearby intersection so that he could pull his patrol car back onto Highway 70 behind the pickup truck. As he was completing his turn, the officer saw the truck passing by the intersection in the same direction that the officer was originally traveling. The officer drove back onto Highway 70 and followed the truck for about a mile. He observed no other motor vehicle violations while following the truck. The officer then turned on his flashing lights and stopped the pickup truck for violation of the seatbelt law, N.J.S.A. 39:3-76.2f(a).

Upon approaching the truck, the officer told defendant that his vehicle had been stopped because he was not wearing a seatbelt. Defendant responded that he did not like to wear a seatbelt because he had had chest surgery and the seatbelt was uncomfortable. Subsequently, the officer obtained evidence, including Alcotest results, that the State intended to use in its prosecution of defendant for DWI and other offenses.

In the municipal court, the judge found the officer's testimony credible and concluded that the officer had reasonable suspicion of a seatbelt violation to make a motor vehicle stop. The Law Division judge agreed with both the credibility finding and the conclusion that the officer's observations provided reasonable suspicion of a seatbelt violation to justify the stop.

Defendant now makes the following arguments on this appeal:

POINT I DEFENDANT'S VEHICLE WAS IMPROPERLY

STOPPED AND HE WAS ILLEGALLY DETAINED

AND ARRESTED WITHOUT PROBABLE CAUSE.

POINT II AS THERE WAS INSUFFICIENT PROOF THAT THE

DEFENDANT HAD COMMITTED ANY MOTOR VEHICLE

VIOLATION WHICH JUSTIFIED THE STOP OF

DEFENDANT'S VEHICLE ALL EVIDENCE OF ANY

ALLEGED INTOXICATION MUST BE SUPPRESSED.

POINT III THE TRIAL COURT IMPROPERLY PERMITTED THE

PROSECUTOR TO ELICIT AN ALLEGEDLY

INCRIMINATORY STATEMENT OF THE DEFENDANT

ON RE-DIRECT EXAMINATION OF THE ARRESTING

POLICE OFFICER.

Defendant's first two points can be summarized as an argument that the courts below had insufficient evidence to conclude that defendant had violated New Jersey's seatbelt law. Defendant contends first that the officer's testimony was not credible and that he stopped defendant purely on a hunch of DWI rather than because he actually observed defendant not wearing a seatbelt. The municipal court, however, and the Law Division on de novo review both found that the officer had testified credibly about his observations.

Our standard of review of the findings of fact and, in particular, the credibility determinations of the trial courts is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 148, 162 (1964)).

Here, the officer testified that he saw defendant in the driver's seat of his pickup truck apparently ready to pull out from a stop sign at the exit of a parking lot onto Highway 70. The officer drove past defendant's vehicle at a distance of about fifty feet, and he was specifically attempting to make observations at a time when businesses were closed, there were few vehicles on the road, and he was on patrol duty. The officer looked at defendant for one or two seconds and could see in sufficient lighting that defendant was not wearing a seatbelt. Within a short time, the officer saw defendant's pickup truck pass the intersection where the officer made a turn. The officer then followed defendant's truck for about a mile but observed no other violation of motor vehicle laws. After he stopped defendant's truck, defendant told the officer that he was uncomfortable wearing a seatbelt because of chest surgery.

Although defense counsel cross-examined the officer skillfully, the essential testimony of the officer as to these facts did not change significantly. Furthermore, there was no evidence in the record contradicting the officer's version of what he had observed. The officer's testimony provided the factual basis for the conclusions each of the courts below reached that the motor vehicle stop did not violate defendant's Fourth Amendment rights.

The police may stop a motor vehicle without violating the Fourth Amendment if they have an "articulable and reasonable suspicion" of violation of law by the driver or a passenger. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); Locurto, supra, 157 N.J. at 470 (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). The State is not required to prove an actual violation of law to justify a motor vehicle stop. It is sufficient for the State to prove reasonable suspicion that a violation has occurred. State v. Williamson, 138 N.J. 302, 304 (1994).

The officer's testimony here provided ample credible evidence for reasonable suspicion of violation of the seatbelt law. The officer saw defendant not wearing a seatbelt within moments of seeing his vehicle traveling on the State highway. Defendant's argument that the officer's testimony lacked credibility is without merit in the face of favorable credibility determinations by the trial courts and this court's standard of review. Additionally, defendant's argument that the officer never saw defendant driving without a seatbelt on the highway fails to account for reasonable inferences that the officer and the courts can draw from the attendant circumstances.

Relying upon State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005), defendant also argues that the officer was mistaken as a matter of law in believing that defendant was violating the seatbelt law when he observed him at the exit of the commercial parking lot. The seatbelt law, N.J.S.A. 39:3-76.2f(a), provides in relevant part:

[E]ach driver and front seat passenger of a passenger automobile operated on a street or highway in this State shall wear a properly adjusted and fastened safety seat belt system.

Emphasizing the reference in the statute to operation of the automobile on a street or highway, defendant argues that the law does not apply while the vehicle is in a private, commercial parking lot, as his truck was when the officer made his observation. In Puzio, we said that "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." Puzio, supra, 379 N.J. Super. at 383.

To the extent that the courts below interpreted the law or "the legal consequences that flow from established facts," our standard of review does not require any special deference to their rulings. Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995). Here, the courts did not interpret the seatbelt law to apply to a private parking lot. Nor did they base their conclusions only on the officer's initial observation of defendant's truck while still in the private parking lot. Rather, as the judge in the Law Division said:

The court specifically finds . . . that it was reasonable for the officer to assume as he observed the defendant waiting to exit onto Route 70 with his headlights on and he believed the car running, with his seat belt off as he passed by that when the defendant pulled his vehicle out behind the defendant [sic], that he continued to do so without his seat belt on.

Thus, the trial court found that the officer had articulable and reasonable suspicion that defendant drove his vehicle onto the State highway still not wearing his seatbelt. We find no reason to disturb that finding.

Defendant argues that the officer testified that a violation had occurred immediately upon his observing defendant in the parking lot. The question, however, is not the officer's subjective belief about a violation of law but whether objectively viewed the evidence supports a finding of reasonable suspicion for the stop. See State v. O'Neal, 190 N.J. 601, 614 (2007); State v. Bruzzese, 94 N.J. 210, 219 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). In Smith, supra, we said, "the constitutionality of a search and seizure is determined by whether the actions taken are objectively reasonable and supported by probable cause and not whether an individual police officer has underlying motives." 306 N.J. Super. at 377-78.

In this case, the officer's mistaken belief would not invalidate the motor vehicle stop if, objectively viewed, the officer had reasonable suspicion to make the stop. As already stated, observation of defendant without a seatbelt moments before his vehicle was driven onto the State highway provided objectively reasonable suspicion of defendant's violation of the law. We conclude that the officer had articulable and reasonable suspicion of a violation of law justifying the motor vehicle stop.

Finally, in Point III of his brief, defendant contends that the municipal court and the Law Division erred in admitting evidence of defendant's statement that wearing a seatbelt was uncomfortable because of his surgery. Both courts relied upon that testimony as support for the officer's credibility. Defendant argues that his statements after his vehicle had been stopped are irrelevant to establishing reasonable suspicion for the stop.

When the prosecution initially attempted to elicit testimony about defendant's statements on direct examination of the officer, the municipal court sustained the defense objection. During redirect examination, the court overruled a similar objection, agreeing with the prosecutor that the defense had opened the door to that testimony in its cross-examination of the officer challenging his credibility.

Our standard of review with respect to the trial court's evidentiary rulings is whether the court abused its discretion. State v. McDougald, 120 N.J. 523, 577-78 (1990); see Hall v. St. Joseph's Hosp., 343 N.J. Super. 88, 107 (App. Div. 2001), certif. denied, 171 N.J. 336 (2002); see also State v. Morton, 155 N.J. 383, 453 (1998) ("Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings."), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). There was no abuse of discretion here.

N.J.R.E. 611(a) provides that "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth." On cross-examination, defense counsel challenged the officer's credibility, including by asking him what questions he had asked defendant immediately after the stop. Defendant's statements, like the officer's questions, were relevant to the officer's credibility rather than to what the officer had witnessed before he made the stop. The court could properly exercise its discretion to allow the prosecutor to bolster the officer's credibility in a manner similar to defense counsel's cross-examination challenging his credibility.

 
Affirmed.

(continued)

(continued)

11

A-3015-08T4

October 21, 2009