STATE OF NEW JERSEY v. MICHAEL W. FASH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0451-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL W. FASH,

Defendant-Appellant.

_________________________

 

Submitted August 31, 2010 - Decided

Before Judges LeWinn and J.N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 19-09.

James L. Fennessy, attorney for appellant.

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Thomas Cannavo, Senior Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

On October 24, 2007, defendant was charged with three motor vehicle summonses: driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; and failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f). Defendant filed a motion to suppress in the municipal court, claiming that the police did not have a reasonable and articulable suspicion to justify the motor vehicle stop. On April 23, 2008, the municipal judge held a hearing on defendant's motion and, in an order filed on April 29, 2008, denied that motion but granted defendant a stay pending an interlocutory appeal to the Law Division.

On March 16, 2009, a Law Division judge heard oral argument on defendant's interlocutory appeal and, at the conclusion of the hearing, rendered an oral decision from the bench denying his motion and remanding the matter to the municipal court. On April 15, 2009, defendant entered a conditional guilty plea to DWI in the municipal court, specifically preserving his right to appeal the denial of his motion to suppress. He was sentenced to an eight-month suspension of his driving privileges, along with the appropriate penalties and assessments.

On April 22, 2009, defendant filed an appeal de novo to the Law Division, challenging the length of the suspension of his driving privileges and seeking a continued stay pending appeal to this court. On August 28, 2009, another Law Division judge issued an order reducing defendant's sentence to a seven-month suspension of driving privileges and granting a stay of sentence pending appeal. Defendant now appeals from the denial of his motion to suppress. We affirm.

The evidence pertinent to our decision may be summarized from the transcript of the hearing on defendant's motion to suppress in the municipal court.

Manchester Township Police Officer Richard Conklin testified that

on October 23, 2007, at approximately 23:42 hours, [he] was dispatched to the parking lot of the Wawa store, 1 180 State Highway 70 in Whiting, New Jersey, in reference to a report of a possible intoxicated driver. Dispatch advised that a Wawa employee had contacted police and stated that a blue Ford F-250 pickup truck with a male driver was in the parking lot and the caller believed the driver to be intoxicated.

. . . .

. . . [U]pon arriving at the scene, [he], in fact, observed a vehicle matching the description given by [d]ispatch beginning to pull out of a parking spot of the Wawa. At the same time, the Wawa employee was pointing to the vehicle.

. . . .

The vehicle was identified by [the officer] as being a blue . . . Ford 250 [sic] pickup truck . . . . As the vehicle began to pull out, [he] observed the driver was not wearing his seatbelt. After making that observation, [he] activated [his] emergency lights and effectuated a motor vehicle stop, and the vehicle came to a stop in the parking lot.

Conklin identified defendant as the driver of the vehicle. He testified that the Wawa parking lot was "[v]ery well lit[,]" and that there was nothing "obstructing [his] view" of defendant's vehicle.

On cross-examination, defense counsel played a tape of the Computer Assisted Dispatch (CAD) to which Conklin had responded. The tape was not transcribed in the municipal court proceedings and is not in the record before us. We base our understanding of the contents of the tape upon the questions posed by counsel.

Several times Conklin noted that the tape was "awfully inaudible to [him,]" and that "[w]ithout a . . . transcript, [he could not] say for sure exactly what was said in that transmission." The CAD tape apparently indicated a discrepancy in the description of the subject vehicle; however, defense counsel acknowledged that he was "not even going to contest whether [the officer] got the right vehicle or not, so that's . . . not the point." It further appears that the CAD tape stated that the officer was told to "start heading over to Station 99 at the gas pumps for a possible four-and-a-half getting gas . . . ." Conklin stated that "Station 99 referred to the Wawa, and that "four-and-a-half" referred to N.J.S.A. 39:4-50. Conklin acknowledged that he did not know whether "the person . . . who relayed the information to [d]ispatch was an employee[,]" or whether the "person who relayed that information could possibly have been relaying thirdhand [sic] hearsay . . . ."

Conklin explained that upon his arrival, an individual dressed in a Wawa uniform pointed out defendant's vehicle to him. Conklin knew the employee, whom he described as an "[e]lderly gentleman with white hair, glasses[,]" named John, who had "called in incidents in the past."

In denying defendant's motion to suppress, the municipal judge found that the officer "ha[d] a duty and responsibility . . . to protect the motoring public, to protect the operator, protect property and damage, and also to respond . . . ." The judge was satisfied that, upon responding "to that location and . . . find[ing] that vehicle, it [was Conklin's] responsibility to stop that vehicle."

In response to defendant's contention that the officer stopped his car "for the seatbelt[,]" the judge noted: "That's certainly a second part of this, but in listening to the CAD and listening to the description of the vehicle . . . , the officer is going to make that stop, seatbelt or no seatbelt." The judge was "satisfied that there was probable cause to stop this vehicle."

On interlocutory appeal to the Law Division, a transcription of the CAD tape was introduced as a joint exhibit. Following argument, the Law Division judge noted that the parties had stipulated that the "matter . . . for argument" was "the question of the reliability of the citizen tip, . . . and that is the question that's before the [c]ourt." The judge further noted that a "secondary argument[,]" namely the "caretaking argument," was related to "the seatbelt . . . [and] the operational argument[s]" but was "not the critical factor in this case."

The judge then made the following findings:

In this situation we have John, the reliable guy, reliable in the past, . . . at the Wawa calls in and says, "I've got a problem in the store with someone who's drunk," and it goes out as a possible [N.J.S.A. 39:] 4-50. The officer goes directly to the Wawa. He arrives at the Wawa, he sees John in his little striped jacket that he recognizes as the Wawa employee. John points to the car. So the car is then identified. John's identified as the Wawa employee who call[ed] it in. The car has been identified. The officer goes over to stop the car. He also notices at that time that the guy does not have his seatbelt on and he's in the process of backing up.

Does the officer have a sufficient basis at that time to stop the car . . . ? I disagree with [defense counsel] . . . that the word "possible" eliminates the validity of the tip. I cannot make that finding. I believe that at the time the officer stopped the car it is [sic] based on reasonable and articulable suspicion of the offense and that the offense has been or is being committed. It is the operation of a motor vehicle . . . .

There's information that someone's behavior in the Wawa at that time of night . . . is sufficiently of concern to the employee of Wawa that . . . the dispatch goes out as a possible [N.J.S.A. 39:] 4-50. . . .

So all of that is before the police officer. He's signaled as to which car it is. He then notices there's no seatbelt, which is not illegal in a parking lot, as far as we can tell, . . . but . . . I don't think it's really the seatbelt. I think it's the simple operation by someone who has been called to the attention of the police as being intoxicated and at that point there's an obligation.

If he had his seatbelt on or didn't have his seatbelt I don't think that makes one bit of difference. . . . We've got a possible [N.J.S.A. 39:] 4-50. At that point there's enough information to stop that car . . . .

So as far as the stop is concerned I find the officer acted properly under the case law and I will sustain the events that occurred thereafter to the extent that they involved a citation for operation while under the influence . . . .

In support of her decision, the trial judge relied upon State v. Amelio, 197 N.J. 207 (2008), 1297 (2009), cert. denied, __ U.S. __, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009), which we discuss below.

The prosecutor inquired whether the judge was making a ruling with respect to the community caretaking basis for the stop. The judge responded that she would "make th[e] finding" that the officer "had a obligation to stop that car . . . under the community caretaking [basis]," but emphasized that she found the stop justified because "an officer cannot let that car move with that information from someone at the Wawa who's pointing to a car[] saying there's a problem." The prosecutor then noted that he was "not making the caretaking function argument because of any perceived weakness on [the State's] part as to the reasonable suspicion argument[,] . . . [but] just . . . for . . . completeness of the record."

On appeal, defendant raises the following contentions for our consideration:

POINT I

BECAUSE THE LIMITED FACTS THAT THE STATE PUT INTO EVIDENCE ARE NOT IN DISPUTE, THIS COURT OWES NO DEFERENCE TO THE LOWER COURT'S ERRONEOUS LEGAL CONCLUSION THAT THE MEAGER EVIDENCE MET THE STATE'S REQUIRED BURDEN OF PROOF.

A. [The Law Division Judge] Below Summarily Disposed of This Case By Abruptly Declaring That "Emilio [sic] Now Says . . . That The Tip is Sufficient . . . There's No Other Way To Read Emilio [sic]," Thereby Failing To Recognize The Distinguishing Differences In This Matter Such As (1) The Lesser Vague Tip Of Only A "Possible" Violation, (2) The Lack Of Enhanced Reliability Since A Tip Of A "Possible" Hunch Cannot Be Prosecuted As A False Statement Of Fact, And (3) The Lack of Exigency Or "Fast Arising Circumstances" In The Case At Bar.

POINT II

THE STATE DID NOT MEET ITS BURDEN, UNDER THE FOURTH AMENDMENT OR THE STATE CONSTITUTION, TO PROVE THE REASONABLE ARTICULABLE SUSPICION NECESSARY TO JUSTIFY THE STOP OF THE VEHICLE.

A. Because The Vague Tip Of A "Possible" DWI Did Not Disclose Anything About The Nature, Details, Or Reliability Of The Tip, And Provided No Information To Suggest That The Tip Was Anything More Than A Subjective And Inarticulate Hunch, This "Possible" Tip Was Insufficient To Constitute The Reasonable Articulable Suspicion Necessary To Support The Stop of Defendant's Vehicle.

B. The Supreme Court In Both Amelio And Golotta Reasoned That The Reliability Of The Tips were Enhanced Since Callers Exposed Themselves To Criminal Prosecution If The Definite Factual Allegations That They Relayed To Dispatch Were Knowingly False; In Contrast, The Tip In The Case At Bar That It Was "Possible" That Defendant Could Be A "Four And A Half" States Nothing More Than A Subjective Hunch, Which Could Not Be Factually False, And Thus Could Not Subject The Caller To Criminal Prosecution.

C. The Lack Of Genuine Exigency, And [The] Officer's Unreasonable Failure To Utilize The Ample "Corroboration Time," And Seven Pairs Of Radio Transmissions With Dispatch To Clarify The Vague Tip Of A "Possible" DWI, Evidenced A Lack Of Reasonable Articulable Suspicion Necessary To Support The Stop Of Defendant's Vehicle.

D. The Officer's Stated Reason For The Stop, That The Defendant Was Not Wearing Seatbelts [sic] While Backing Out Of A Parking Spot In A Private Parking Lot, Was A Mistake Of Law, And Such Mistakes Of Law Cannot Ever Justify A Stop/Seizure.

POINT III

ALLOWING POLICE TO STOP AND DETAIN MOTORISTS BASED ON NOTHING MORE THAN THE UNCORROBORATED TIP OF A "POSSIBLE" VIOLATION WOULD DEFEAT THE PURPOSES OF THE EXCLUSIONARY RULE.

POINT IV

THE COMMUNITY CARETAKING DOCTRINE GENERALLY DOES NOT APPLY TO THE DISPATCH OF POLICE OFFICERS TO AN AREA TO DETER THE COMMISSION OF AN OFFENSE, AND THIS ADMONITION APPLIES EVEN MORE STRONGLY WHERE, AS IN THE CASE AT BAR, THE OFFICER WAITS FOR THE DEFENDANT TO DRIVE HIS VEHICLE SO THAT THE OFFICER MAY GATHER EVIDENCE OF, RATHER THAN DETER, THE DWI OFFENSE.

Having reviewed these contentions in light of the record and the controlling legal principles, we conclude they are without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Barbara Ann Villano, in her decision rendered from the bench on March 16, 2009. We add only the following brief comments.

We agree with Judge Villano that Amelio, supra, 197 N.J. 207, is dispositive. There, the defendant's then-seventeen-year-old daughter called a police dispatcher to report that her father "was drunk and that he was leaving the home operating a black Oldsmobile. The daughter also gave the New Jersey license plate number of the vehicle." Id. at 210. Following receipt of that dispatch, police officers observed the defendant's vehicle with the license plate number matching that provided by dispatch, stopped defendant's vehicle and, as a result, charged him with DWI. Ibid.

Under those circumstances, the Court found that

the officers properly relied on the seventeen-year-old daughter's report that her father was drunk. This was not an anonymous tip. Rather, this was a citizen who gave her name to the police when she . . . reported that her father, whom she said was drunk, was leaving the house driving his car. The seventeen-year-old was "in the nature of a . . . complainant, whose information could be taken at face value irrespective of other evidence concerning [her] reliability."

[Id. at 213 (quoting State v. Lakomy, 126 N.J. Super. 430, 436 (App. Div. 1974)).]

The Court noted that "the caller was a known person, who exposed herself to criminal prosecution if the information she related to dispatch was knowingly false. Moreover, she described the vehicle and gave the license tag number." Id. at 214 (citations omitted).

Similarly, here the "caller" was identified as a Wawa employee named John, who also provided a description of defendant's vehicle; moreover, the employee personally pointed out defendant's vehicle to the responding police officer. Just as the daughter in Amelio, supra, "exposed herself to criminal prosecution if the information she related to dispatch was knowingly false[,]" ibid., John, the identified Wawa employee, placed himself at a similar risk.

Here, as in Amelio, "[t]he caller's description . . . provided a sufficiently precise description of a commonly understood condition, and therefore, no further elaboration of his condition was required. The details of [this report] by a known citizen gave the police reasonable and articulable suspicion to stop and investigate the conduct of defendant." Id. at 215.

We are satisfied that the record supports a similar result here. Defendant's arguments to the contrary are unavailing.

Finally, as we have affirmed the decision below on the basis of State v. Amelio, we need not address defendant's community caretaking argument.

 
Affirmed. The August 28, 2009 stay of sentence is hereby vacated.

The other two charges were dismissed pursuant to the plea agreement.

That transcript has not been provided to us.

The defendant was also charged with refusing to submit to a Breathalyzer test, N.J.S.A. 39:4-50.2. Ibid.

"The 'community caretaker doctrine' . . . applies when the 'police are engaged in functions [which are] totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a [criminal] statute.'" State v. Diloreto, 180 N.J. 264, 275 (2004) (citation omitted).

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A-0451-09T4

September 3, 2010