STATE OF NEW JERSEY v. ROBERT BREMBT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0103-09T40103-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT BREMBT,

Defendant-Appellant.

______________________________

 

Submitted June 7, 2010 - Decided

Before Judges Yannotti and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-08-09.

George F. Surgent, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel).

PER CURIAM

Defendant Robert Brembt appeals from his conviction for driving while intoxicated (DWI). He contends that his conviction should be overturned because he was stopped at a checkpoint that violated the standards set forth in State v. Kirk, 202 N.J. Super. 28 (App. Div. 1985). Finding no violation of those standards, we affirm.

On May 24, 2008, at 12:50 a.m., defendant was stopped at a DWI checkpoint located on Wyckoff Avenue in Waldwick Township. The officer who approached him observed that defendant's eyes were glassy and watery, saw two open cans of beer in the vehicle, and smelled an alcoholic beverage on defendant's breath. The officer then had defendant recite the alphabet, count backward, and perform other field sobriety tests. Based on defendant's performance, the officer concluded that defendant was intoxicated and arrested him. Defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50; driving while intoxicated in a school zone, N.J.S.A. 39:4-50(g)(1); possessing an open container in a motor vehicle, N.J.S.A. 39:4-51b; and reckless driving, N.J.S.A. 39:4-96.

Defendant filed a motion to suppress and argued that the DWI checkpoint did not meet the requirements set forth in State v. Kirk, and that there was no probable cause to stop him based on the officers' observations of his vehicle. After conducting an evidentiary hearing, the municipal court denied the motion.

Defendant thereafter entered into a conditional plea agreement, reserving his right to appeal the denial of his motion to suppress, and he pled guilty to driving while intoxicated. The other charges were dismissed. The municipal court sentenced defendant to forty-eight hours in the Intoxicated Driver Resource Center (IDRC) and thirty days of community service, suspended his driver's license and driver's registration for two years, and imposed a $500 fine and the requisite monetary costs and surcharges.

Defendant appealed to the Law Division, which conducted a de novo review and concluded that the checkpoint satisfied the requirements of State v. Kirk. It imposed the same sentence as the municipal court. That decision was memorialized in the order of August 6, 2009. Defendant appeals from the order, contending that the checkpoint does not meet the requirements of State v. Kirk.

While the trial court's review of an appeal from a municipal court decision is de novo, Rule 3:23-8(a), our review is more limited. "We do not re-weigh the evidence, but rather, determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Oliveri, 336 N.J. Super. 244, 252 (App. Div. 2001). However, with respect to questions of law, we give the conclusions of the trial court no deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A checkpoint or roadblock is considered a seizure within the meaning of the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey State Constitution. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979); State v. Kirk, supra, 202 N.J. Super. at 35-37. In State v. Kirk, supra, applying New Jersey State constitutional law, we wrote that when stopping a vehicle at a checkpoint or roadblock, "[t]he police need not show probable cause to stop any individual driver but they must show some rational basis for deploying this type of intrusive law enforcement technique." 202 N.J. Super. at 56. To meet the requirements of the New Jersey Constitution, a roadblock "must be established for a specific need and to achieve a particular purpose at a specific place." State v. Carty, 170 N.J. 632, 652 (2002). In order to justify the intrusion of these stops, the State must demonstrate "some substantial benefit to the public from the road-block stops and some appropriate control of the discretion of the officer in the field." State v. Kirk, supra, 202 N.J. Super. at 55.

Further, "[s]imply sending out officers to set up road blocks when and where they felt like it, without any command participation as to site, time and duration, and not based on articulated and rational law enforcement needs" would not be likely to pass constitutional muster. Id. at 41.

If the road block was established by a command or supervisory authority and was carefully targeted to a designated area at a specified time and place based on data justifying the site selection for reasons of public safety and reasonably efficacious or productive law enforcement goals, the road block will likely pass constitutional muster. Other factors which enhanced judicial approval were (1) adequate warnings to avoid frightening the traveling public, (2) advance general publicity designed to deter drunken drivers from getting in cars in the first place, and (3) officially specified neutral and courteous procedures for the intercepting officers to follow when stopping drivers.
 
[State v. Carty, supra, 170 N.J. at 652-53 (quoting State v. Kirk, supra, 202 N.J. Super. at 40-41).]

Defendant argues that the officers had impermissible discretion to determine which vehicles to stop and that the location of the checkpoint was not justified. The checkpoint in this case was implemented through a memorandum developed by the lieutenant in charge of the Traffic Bureau in the Waldwick Police Department and which was approved by the Bergen County Prosecutor. The memorandum allowed the officers to stop every third vehicle, but if traffic conditions permitted they could stop every vehicle. Defendant contends that allowing the officers to determine when traffic conditions permitted stopping every vehicle gave them too much discretion and was a direct violation of State v. Kirk.

We reject this argument. Certainly, to justify a roadblock, the State must, among other factors, show some "appropriate control of the discretion of the officer in the field." State v. Kirk, supra, 202 N.J. Super. at 55. However, here the testimony indicates that the decision whether to stop every vehicle or every third vehicle was not made by the officers stopping the vehicles, but rather by the lieutenant and two police chiefs who were on the scene of the checkpoint. Under these circumstances, the discretion to choose between stopping every vehicle and every third vehicle was appropriately limited and supervised and does not run afoul of the State v. Kirk requirement.

Defendant also contends that there is no justification for placing a checkpoint at this particular location. The site of a checkpoint must be "designed to benefit the overall effort to cope with drunken driving." Id. at 57. This standard has been met. The memorandum from the lieutenant to the Bergen County Prosecutor seeking approval for a checkpoint at this particular location is replete with factors justifying the placement of a checkpoint at this location, including the fact that numerous DWI arrests had been made in the vicinity of the checkpoint in the past, that the area is well traveled, and that numerous restaurants and bars serving alcoholic beverages are located in the vicinity of the checkpoint location.

Defendant further asserts that the State failed to provide appropriate notice to motorists approaching the checkpoint. The Court has recognized that a valid checkpoint must provide "adequate warnings to avoid frightening the traveling public." State v. Carty, supra, 170 N.J. at 652-53 (quoting State v. Kirk, supra, 202 N.J. Super. at 40-41). This requirement was met here. Before reaching the checkpoint, the approaching motorists encountered signs stating "DWI checkpoint ahead," or "stop, DWI checkpoint," and cones were set out to guide traffic. In addition, the checkpoint was illuminated with four flood lights and light from a fire department rescue truck.

Defendant also contends that the police did not give required advance notice to the public at large of the planned checkpoint. The Court has recognized that "advance general publicity designed to deter drunken drivers from getting in cars in the first place" is a factor that will "enhance[] judicial approval" of a checkpoint. Ibid. (quoting State v. Kirk, supra, 202 N.J. Super. at 40-41). However, advance newspaper notice of a checkpoint is not constitutionally required. State v. DeCamera, 237 N.J. Super. 380, 383 (App. Div. 1989). Here, the police sent out a notice of the checkpoint on the internet. We find no constitutional flaw here.

Finally, defendant contends that the record contains no evidence that "less intrusive methods of deterring intoxicated drivers was studied, considered or attempted" nor any evidence presented on the effectiveness of the checkpoint. To sustain the constitutionality of a roadblock or checkpoint, the State must be able to show a "substantial benefit to the public." State v. Kirk, supra, 202 N.J. Super. at 55. The rational needs of law enforcement and the benefits to the public of the checkpoint must outweigh the intrusion on the privacy rights of citizens to travel unimpeded on the roadways. Id. at 55-56.

Here, the memorandum from the lieutenant to the Bergen County Prosecutor prepared prior to the checkpoint sets forth the justification for the checkpoint. It explains the success of checkpoints to the east of this location in the past; sets forth statistics on the number of accidents and DWI arrests and related accidents in Waldwick for the preceding eight years; and states the reasons for selecting this particular location. This information is sufficient to establish legitimate law enforcement goals in implementing this checkpoint. Further, the lieutenant in charge of traffic for Waldwick testified that "[i]t has been my experience over the course of twenty years that most of our drunk driving arrests in town involve some type of passage along Wyckoff Avenue." The record is sufficient to establish the public interest in the checkpoint.

 
For all of these reasons, we conclude that the record contains sufficient credible evidence to sustain the trial court's findings that the checkpoint met constitutional standards. Affirmed.

(continued)

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A-0103-09T4

July 13, 2010