STATE OF NEW JERSEY v. ANTHONY L. QUINN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5554-08T45554-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ANTHONY L. QUINN,

Defendant-Appellant.

__________________________________

 

Submitted: July 6, 2010 - Decided:

Before Judges Cuff and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-058.

Advokat & Rosenberg, attorneys for appellant (Jeffrey M. Advokat, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Anthony L. Quinn appeals from his conviction after a trial de novo in the Law Division of driving while intoxicated (DWI), N.J.S.A. 39:4-50; and driving while suspended, N.J.S.A. 39:3-40. On the DWI conviction, his third, defendant was sentenced to a fine of $1000, a ten-year license and vehicle registration suspension, and 180 days in the Morris County Correctional Facility. On the driving while suspended conviction, defendant was sentenced to a two-year suspension of driving privileges, a $750 fine, and ten days in the Morris County Correctional Facility, concurrent to the sentence imposed on the DWI conviction. Appropriate costs, surcharges, penalties, and assessments were also imposed on each charge. We affirm.

Shortly before 9:00 p.m. on October 12, 2006, an attendant at a gas station in Randolph Township, Morris County, was robbed at gunpoint. The Randolph Township Police Department received notice of the robbery at approximately 8:50 p.m. A detective responded to the gas station, received a description of the robber, and broadcast the description to police officers in the area. The Randolph Police Department set up a perimeter in the vicinity of the gas station with the assistance of police from neighboring towns.

In response to the instruction to set up a perimeter, Officer James Carkhuff of the Chester Township Police Department responded to the intersection of Hugg Road and Evergreen Road. Hugg Road is a residential road located about a quarter mile from the gas station. From Evergreen Avenue, a person can travel to Pine Tree and Mountain View Roads, which back into the street where the robber was last seen running through a backyard.

Carkhuff parked his marked patrol car on the side of the road and stood outside the vehicle with a flashlight. Carkhuff encountered only two vehicles. The first was an ATV driven by a person the officer knew. At 9:15 p.m., a second car approached the intersection. The officer shined his flashlight on the driver, who stopped his car. Carkhuff immediately recognized defendant as the driver and knew his license was suspended. Carkhuff arrested defendant. Following his arrest, the officer also realized that defendant was driving while under the influence of alcohol. Defendant thereafter, pled guilty before the Chester Township Municipal Court following denial of his motion to suppress.

On de novo review to the Law Division and following an evidentiary hearing at which Detective John Fichter, who investigated the robbery, broadcast the description of the robber, and instructed officers to set up a perimeter in the vicinity of the gas station, and Carkhuff testified, Judge Dangler found that the police response was reasonable in the course of a normal police investigation of an armed robbery of a local business. He found that the momentary stop of defendant and shining a flashlight on him was reasonable.

On appeal, defendant raises the following argument:

Defendant's Vehicle Was Stopped In Violation Of His Fourth Amendment Right To Be Free From Unreasonable Searches and Seizures.

Defendant argues that the police officer performed an investigatory stop that requires a reasonable articulable suspicion of criminal behavior, see State v. Privott, ___ N.J. ___, ___ (2010) (slip op. at 8-11); State v. Roach, 172 N.J. 19, 27 (2002), and further contends that the encounter between Carkhuff and defendant did not meet that standard. The State disagrees.

There is another constitutionally permissible form of police encounter, the field inquiry, that does not constitute a search or seizure for purposes of the warrant requirement. Privott, supra, ___ N.J. at ___ (slip op. at 8). Justice Wallace explained the field inquiry as follows:

The police do not violate a citizen's rights "'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.'"

[Ibid. (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).]

Based on the totality of the circumstances, we conclude that the encounter between defendant and the police officer bears more of a resemblance to a field inquiry than an investigatory stop, and must be considered permissible and reasonable police conduct.

In fact, this encounter between defendant and Carkhuff bears a striking resemblance to the highway checkpoint used by police to stop motorists to inquire about a recent fatal hit-and-run accident in Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004). Justice Breyer explained that "[t]he stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle's occupants, but other individuals." Id. at 423, 124 S. Ct. at 889, 157 L. Ed. 2d at 850. Continuing, Justice Breyer expressly stated, "Neither do we believe . . . that the Fourth Amendment would have us apply a[ ] . . . rule of automatic unconstitutionality to brief, information-seeking highway stops of the kind before us." Id. at 424, 124 S. Ct. at 889, 157 L. Ed. 2d at 850. The stop will, however, be subject to an evaluation of its reasonableness based on the individual circumstances of each situation. Id. at 426, 124 S. Ct. at 890, 157 L. Ed. 2d at 852.

Here, the police officer did not stop defendant because he thought defendant had committed the gas station robbery or any other criminal offense or quasi-criminal offense. He did no more than signal defendant to come to a brief stop in order to ask him if he had any information of recent criminal activity in the neighborhood. Under the totality of the circumstances, the officer acted reasonably and the brief roadside encounter is not constitutionally infirm. See State v. Carty, 170 N.J. 632, 652 (noting the subjective intrusion is appreciably less in a checkpoint stop than a full vehicular search), modified by 174 N.J. 351 (2002).

 
Affirmed.

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A-5554-08T4

July 21, 2010