STATE OF NEW JERSEY v. RICHARD H. MESSIMER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3443-08T43443-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RICHARD H. MESSIMER,

Defendant-Respondent.

________________________________________________________________

 

Submitted July 8, 2009 - Decided

Before Judges R. B. Coleman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Cape May County, Municipal

Appeal No. 22-09-08.

Robert L. Taylor, Cape May County Prosecutor,

attorney for appellant (J. Vincent Molitor,

Assistant Prosecutor, of counsel and on the

brief).

Richard H. Messimer, defendant pro se.

PER CURIAM

Defendant Richard Messimer was charged in the North Wildwood Municipal Court with careless driving, in violation of N.J.S.A. 39:4-97, driving while intoxicated, in violation of N.J.S.A. 39:4-50, and refusing to submit to a breathalyzer test, in violation of N.J.S.A. 39:4-50.2. After the municipal court denied defendant's motion to suppress the evidence against him, defendant entered a conditional guilty plea to driving while intoxicated, reserving the right to appeal the denial of his motion to suppress. R. 3:9-3(f). In return for defendant's guilty plea, the State agreed to dismiss the other charges.

Defendant appealed the denial of his motion to suppress to the Law Division, which reversed. The State appeals from the order entered on March 11, 2009, granting defendant's motion to suppress "all evidence flowing from the motor vehicle stop of June 23, 2008 in the municipality of North Wildwood Township." On appeal, the State argues the Law Division erred in granting defendant's motion to suppress because the police officer who stopped defendant's vehicle had a reasonable basis for doing so. We agree and reverse.

The only witness to testify at the suppression hearing was Officer Katherine Flounders, a member of the North Wildwood Police Department. Flounders testified that on June 23, 2008, at approximately 11:00 p.m., her patrol vehicle was parked in a municipal parking lot "located at 1st and Olde New Jersey Avenue near the bar district," when she "heard screeching tires in the area," and she observed a black pickup truck, which was being driven by defendant, approach the intersection at 1st Avenue and Olde New Jersey Avenue and come to a stop.

Officer Flounders was then asked: "What happened when the black pickup truck pulled away from the stop sign?" and she testified:

A. Tires screeched and the . . . rear of the truck fishtailed.

Q. . . . What do you mean by screech? Could you -

A. High pitched sound.

Q. And about how long duration did that last?

A. Approximately two seconds.

Q. And where were you looking when you heard this sound?

A. I was looking at . . . the black truck.

Q. And now you used the word . . . fishtailed. The truck fishtailed. Could you describe to us exactly what it was the truck was doing?

A. The . . . back end of the truck lost traction with the road, and it swerved from left to right.

Q. Approximately how far did the back of the vehicle swerve left to right?

A. Maybe about a foot.

. . . .

Q. Now what else did you observe this vehicle do after the tires had stopped screeching?

. . . .

A. The truck - as the truck pulled away he pulled away at a high rate of speed.

According to Flounders, the road was wet that night because it was raining. Flounders testified that she followed defendant's vehicle for "maybe two minutes" before stopping the vehicle. During this period, Flounders did not observe any traffic violations.

The municipal court judge noted "that Officer Flounders was not able to approximate distances very accurately." Nevertheless, based on the totality of the circumstances, the court found that she was a credible witness. In addition, based on the screeching tires, the swerving, and the fact that defendant pulled away from the intersection at a high rate of speed, the municipal court found that the stop was not unreasonable because defendant could have damaged his truck or other property in the area, and he could have been injured "if he had lost control of his motor vehicle as it fishtailed and swerved."

On de novo review in the Law Division, the court was unwilling to defer to the municipal court's determination that Flounders was a credible witness even though defendant never disputed the critical facts. In addition, the Law Division judge found "there was no basis" for stopping defendant's vehicle.

"'It is firmly established that a police officer is justified in stopping a motor vehicle when he 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)). "To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor vehicle violation occurred." Ibid. The State only has to show that the officer who made the stop had an objectively reasonable suspicion of the commission of a motor vehicle offense. See State v. Pitcher, 379 N.J. Super. 308, 315-16 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).

In this case, we conclude that the Law Division judge erred when it failed to defer to the municipal court's credibility finding regarding the testimony of Officer Flounders, which was not contradicted or seriously disputed. See State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" (quoting State v. Johnson, 42 N.J. 146, 162 (1964))). In addition, the record fully supports the determination by the municipal court judge that Officer Flounders's observations provided a sufficient factual foundation for a reasonable and articulable suspicion that defendant was operating his vehicle carelessly. Accordingly, the order entered by the Law Division on March 11, 2009, which granted defendant's motion to suppress, is reversed and the judgment of conviction entered in the municipal court is reinstated.

 
Reversed and remanded for further proceedings consistent with this opinion.

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A-3443-08T4

July 30, 2009