STATE OF NEW JERSEY v. VINCENT J. MATTHEWS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3529-07T43529-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT J. MATTHEWS,

Defendant-Appellant.

_______________________________

 

Submitted April 30, 2009 - Decided

Before Judges Parrillo and Messano.

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Municipal Appeal

No. 0091-07.

Joseph A. Levin, attorney for appellant.

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant

County Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress evidence, and after a trial in the municipal court, defendant Vincent J. Matthews was found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and possession of an open container of alcohol in a motor vehicle, N.J.S.A. 39:4-51b. The latter was merged with the former, which represented defendant's fifth such offense. As such, he was sentenced to 180 days in jail; a ten-year loss of license, a three-year period of ignition lock; and $1,364 in fines, costs and assessments. On appeal, the Law Division affirmed on the basis of its de novo review, but stayed the jail portion of defendant's sentence. On appeal here from the denial of his motion to suppress, defendant argues that his "stop" and "seizure" were unconstitutional as lacking the requisite reasonable and articulable suspicion of criminal activity or motor vehicle violations. For the following reasons, we affirm.

The facts are essentially undisputed. Around 2:00 a.m. on June 30, 2007, State Trooper David Myrick and his partner were patrolling Atlantic City streets in a marked vehicle. Turning from South Carolina Avenue onto Mediterranean, they saw defendant's pick-up truck parked legally with headlights on and engine running. Myrick saw two individuals in the front seat of the truck and decided to speak to them to make sure they were alright, even though neither the vehicle nor its occupants evidenced any sign of irregularity, distress, or otherwise being in need of assistance. Myrick pulled his vehicle behind defendant's truck, parked it, and activated its overhead lights in order both to avoid being rear-ended by other vehicles and to alert defendant that the car behind his truck was a law enforcement vehicle and not that of some random person.

After activating the overhead lights, Myrick and his partner exited the vehicle while, simultaneously, the female passenger got out of defendant's truck and walked toward the back of it. While Myrick's partner was speaking with the woman, Myrick approached the driver's window and, with the use of his flashlight, saw on the console, next to defendant, an open can of beer. He also noticed a white plastic bag on the floor of the truck with five other cans of beer in it. Myrick then asked defendant if he was okay and, as defendant responded, the trooper detected a strong odor of alcohol on defendant's breath. When Myrick then requested his license, registration and insurance card, defendant complied and produced valid driving credentials. Thereafter, Myrick asked defendant to exit his vehicle and perform three psycho-motor tests - the alphabet test, the heel-to-toe test, and the one-leg stand test - all of which defendant failed. Defendant was then arrested for DWI and transported to the nearby State Trooper station where he was administered the Alcotest, which registered a blood alcohol content of .09.

As noted, defendant was charged in separate summonses with four motor vehicle violations. At his motion to suppress in the municipal court, defendant argued that the police "seizure" of his vehicle was without reasonable and articulable suspicion and, furthermore, could not be justified as part of their "community caretaking" function. The State countered that there was no "seizure" and, alternatively, the trooper was simply rendering motorist aid. The court denied defendant's motion. These arguments were essentially reiterated in the Law Division, which affirmed defendant's DWI conviction, holding that the police-citizen encounter did not constitute a "seizure" and, therefore, required no constitutional justification. Defendant renews his arguments on appeal here. Police-citizen encounters generally occur at three distinct levels, but only two require constitutional justification. "It is well-settled that the police may arrest only if they have probable cause; may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion." State v. Sirianni, 347 N.J. Super. 382, 387-88 (App. Div.), certif. denied, 172 N.J. 178 (2002); see also Florida v. Royer, 460 U.S. 491, 497-99, 103 S. Ct. 1319, 1324-25, 75 L. Ed. 2d 229, 236-37 (1983) (plurality opinion); State v. Maryland, 167 N.J. 471, 482-84, 486-87 (2001); State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983), certif. denied, 96 N.J. 267 (1984). Mere inquiries require no constitutional justification. State v. Stovall, 170 N.J. 346, 356 (2002); State v. Dangerfield, 339 N.J. Super. 229, 236 (App. Div. 2001). On-the-spot questioning involves neither detention nor seizure in the constitutional sense. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973); State v. Abreu, 257 N.J. Super. 549, 554-55 (App. Div. 1992). Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles. See Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); State v. Stampone, 341 N.J. Super. 247, 252 (App. Div. 2001). As the United States Supreme Court held in Royer, supra:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.

[460 U.S. at 497, 103 S. Ct. at 1324, 75 L. Ed. 2d at 236.]

To be sure, "a single encounter may escalate from 'inquiry' to 'stop' to 'arrest' so that the criteria for each category must be applied as the situation shades off from one category to the other." Alexander, supra, 191 N.J. Super. at 577. An inquiry may be converted into an investigative detention if, given the totality of the circumstances, a reasonable person were to believe he was not free to leave. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Citarella, 154 N.J. 272, 280 (1998); State v. Tucker, 136 N.J. 158, 164 (1994); State v. Davis, 104 N.J. 490, 498 (1986); State v. Costa, 327 N.J. Super. 22, 31 (App. Div. 1999); State v. Contreras, 326 N.J. Super. 528, 538 (App. Div. 1999); State v. Morrison, 322 N.J. Super. 147, 152 (App. Div. 1999). The test is an objective one and involves an assessment of the totality of the circumstances surrounding the encounter. Maryland, supra, 167 N.J. at 487; Tucker, supra, 136 N.J. at 163-64; Davis, supra, 104 N.J. at 505. As always, the touchstone of the Fourth Amendment of the United States Constitution, as well as Article I, 7 of the New Jersey Constitution, is reasonableness. State v. Zapata, 297 N.J. Super. 160, 171 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998).

Our Supreme Court in Davis, supra, explained the difference between a field inquiry and an investigative stop:

"[t]he critical inquiry would be whether the policeman, although perhaps making inquiries which a private citizen would not be expected to make, has otherwise conducted himself in a manner consistent with what would be viewed as a nonoffensive contact if it occurred between two ordinary citizens." W.R. Lafave, 3 Search and Seizure, 9.2 at 53. Thus, an officer would not be deemed to have seized another if his questions were put in a conversational manner, if he did not make demands or issue orders, and if his questions were not overbearing or harassing in nature. Id. at 53-54.

[104 N.J. at 497 n.6.]

"While most citizens will respond to a police request, the fact that people do so, and do so even without being told that they are free not to respond, hardly eliminates the consensual nature of the response." State v. Hickman, 335 N.J. Super. 623, 635 (App. Div. 2000) (quoting INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247, 255 (1984)).

The rule is, furthermore, that a police request for identification from a person lawfully in a public place, does not, by itself, constitute a seizure or detention within the meaning of the Fourth Amendment. See, e.g., Florida v. Bostick, 501 U.S. 429, 434-35, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389, 398 (1991); Delgado, supra, 466 U.S. at 216, 104 S. Ct. at 1762, 80 L. Ed. 2d at 255 (1984); Royer, supra, 460 U.S. at 501, 103 S. Ct. at 1326, 75 L. Ed. 2d at 238-39; United States v. Castellanos, 731 F.2d 979, 983 (D.C. Cir. 1984); Gomez v. Turner, 672 F.2d 134, 144 (D.C. Cir. 1982); United States v. Wylie, 569 F.2d 62, 66-68 (D.C. Cir. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1527, 55 L. Ed. 2d 542 (1978). State courts that have addressed this issue have held similarly. See, e.g., Hammons v. State, 940 S.W.2d 424, 428 (Ark. 1997); People v. Grant, 217 Cal. App. 3d 1451, 1460, review denied 1 990 Cal. LEXIS 2372 (1990); People v. Paynter, 955 P.2d 68, 74 (Colo. 1998); Purce v. United States, 482 A.2d 772, 775 (D.C. App. 1984); Cliett v. State, 722 So. 2d 916, 917-18 (Fla. Dist. Ct. App. 1998); Quinn v. State, 485 S.E.2d 483, 485 (Ga. 1997); State v. Tsukiyama, 525 P.2d 1099, 1100-01 (Haw. 1974); State v. Reason, 951 P.2d 538, 543-44 (Kan. 1997); State v. Johnston, 620 N.E.2d 128, 130 (Ohio Ct. App. 1993); State v. Daniel, 12 S.W.3d 420, 427 (Tenn. 2000); State v. Jackson, 805 P.2d 765, 768 (Utah Ct. App. 1990), cert. denied, 815 P.2d 241 (Utah 1991); State v. Arneson, 2 001 WL 1658939, at *2 (Wis. Ct. App. Dec. 28, 2001). New Jersey cases are in accord with this view. See Alexander, supra, 191 N.J. Super. at 578 (citing Gomez v. Turner, 672 F.2d 134, 142-44 (D.C. Cir. 1982) for the proposition that intrusiveness of routine police request for identification in a public place with no show of authority other than officer's presence is so slight as to be a mere inquiry requiring no articulable basis).

That no constitutional justification is required is so, regardless of whether the individual is on foot or is sitting in a parked automobile. Sirianni, supra, 347 N.J. Super. at 389; Stampone, supra, 341 N.J. Super. at 252. In Stampone, we held that where a police officer approached an individual in a parked car, engaged him in voluntary conversation, and made a general request for identification, that the individual had remained free to refuse. Ibid. We similarly held in Sirianni, supra, that police who approached an individual apparently sleeping in an automobile parked near a house under surveillance and requested his identification violated no constitutional mandate. 347 N.J. Super. at 389. Of course, in each of these cases, as here, the defendant was already stopped, and nothing prevented the police from approaching, asking questions and requesting identification.

Defendant, nevertheless, contends that the activation of the police vehicle's overhead lights somehow transformed the present encounter into a "seizure." We disagree and discern no significance, constitution-wise, in this added feature. We decline to hold that whenever a police officer turns on a marked vehicle's overhead lights before approaching an already stopped car, there has been a "seizure" requiring constitutional justification. And nothing in the facts of record here, evaluated in their totality, would have suggested to a reasonable person in these physical circumstances, that Trooper Myrick was attempting to "seize" either defendant's vehicle or defendant himself. Rather, as the court noted in State v. Hanson, 504 N.W.2d 219 (Minn. 1993), on facts similar to these, "[a] reasonable person would have assumed that the officer was not doing anything other than checking to see what was going on and to offer help if needed." Id. at 220.

Similarly, in United States v. Docker, 58 F.3d 1284 (8th Cir. 1995), the defendants were sitting in a vehicle that was off the traveled part of the road with its parking lights on. Id. at 1285-86. A sheriff's deputy, who did not observe or even suspect any criminal activity, pulled his vehicle behind their vehicle, activated his overhead warning lights, and approached the defendants' car. Id. at 1286-87. The deputy asked the occupants if they needed assistance and, in the course of speaking to them, detected the odor of burnt marijuana emanating from their vehicle and saw several bundles of single cigarettes in the console area. Ibid. In rejecting the defendants' claim of an unreasonable seizure, the court noted that the deputy's vehicle had not blocked the defendants' vehicle, the deputy did not draw his gun, and the tone of the deputy's voice was inquisitive rather than coercive. Ibid. The activation of the warning lights on the deputy's vehicle did not transform the deputy's approach and inquiry into a seizure of the defendants, because everything done by the deputy would have been expected in any response to a routine roadside assistance call. Id. at 1287. The activation of overhead lights on a law enforcement vehicle would not necessarily signify to an innocent, reasonably prudent person of average intelligence in a parked vehicle that he was not free to leave where the vehicle is parked. Ibid.

So too, here. Trooper Myrick expressly testified that he activated his vehicle's overhead lights so as not to be rear-ended by other vehicles and in order to let defendant know it was a law enforcement officer who had parked behind his truck and was approaching it at 2:00 a.m. In our view, a reasonable person would have known that the overhead lights on police cars are used as much for safety reasons as they are for apprehending lawbreakers, and that nothing in this record would have reasonably communicated the latter purpose. As such, we are satisfied that under the totality of the circumstances presented, the trooper's activation of his vehicle's overhead lights and his subsequent approach of defendant's car amounted to no more than a field inquiry for which no constitutional justification was required. Of course, once lawfully positioned to then make his plain view and plain smell observations, the trooper's further request of defendant to exit the vehicle and undergo testing, which defendant does not challenge independently, were supported by reasonable and articulable suspicion and thus may not be considered the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 453 (1963); State v. Pante, 325 N.J. Super. 336, 346-47 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000).

Affirmed.

Defendant was acquitted of consumption of alcohol in a motor vehicle, N.J.S.A. 39:4-51a, and failure to wear a seatbelt, N.J.S.A. 39:3-76.2f.

The State has since abandoned its alternative "community caretaking" rationale.

(continued)

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