STATE OF NEW JERSEY v. JOHN E. HENNESSY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2341-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN E. HENNESSY,

Defendant-Appellant.

__________________________________

December 22, 2011

Submitted October 19, 2011 - Decided

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 2A2010K23.

Lomurro, Davison, Eastman & Munoz, P.A., attorneys for appellant (Peter H. Lederman, of counsel and on the brief).

Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John E. Hennessy appeals his conviction, following a conditional guilty plea, for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Shortly before midnight on April 29, 2009, Readington Township Police Officer Gregory Wester was patrolling Route 523 in Readington. He observed a black Ford Explorer drift over both the fog line and the double yellow line. There was between one-eighth and one-sixteenth of a mile between those two incidents. Wester observed the vehicle cross marked lines three or four additional times. He then activated his overhead lights to stop the vehicle. The vehicle pulled over promptly after Wester's emergency lights came on. The distance between the first observation and the stop was approximately one-and-one-half miles.

When Wester activated the overhead lights, the video recorder in his vehicle was also activated. He testified that he did not manually turn the recorder on earlier because he did not want to divert his attention from the roadway. Wester wanted to keep his eyes on the road and his hands on the steering wheel because there were several curves and changes of elevation on that part of the road, which he described as "twisty," "narrow[]," and "dark." Wester conceded that it was standard operating procedure to turn the video recorder on if there was an observation of erratic driving.

When Wester approached the vehicle, he observed the driver, who was identified as Hennessy. Wester testified that Hennessy's "eyes were bloodshot and watery and his face was flushed." He also detected the "odor of alcohol emitting from inside the vehicle." However, Hennessy had no difficulty producing his driving credentials and his speech was not slurred. At some point, Hennessy told Wester that he had consumed three glasses of wine over approximately four hours while attending a Phillies game.

Wester directed Hennessy to get out of the vehicle, which he was able to do without difficulty. Wester smelled the odor of alcohol directly from Hennessy after he had gotten out of his vehicle.

Wester administered three field sobriety tests. The first, known as the Horizontal Gaze Nystagmus (HGN) test, is not admissible in New Jersey courts, State v. Doriguzzi, 334 N.J. Super. 530, 533 (App. Div. 2000), and was not considered by either the municipal court judge or the Law Division judge. According to Wester's testimony, Hennessy failed the one-leg-stand test and the walk-and-turn test. Hennessy also refused to complete those tests after his initial failure in each, based upon what he maintained was a physical disability. Wester did not attempt any additional, non-physical tests.

Based upon his observations of Hennessy's driving, the odor of alcohol, the bloodshot and watery eyes, the flushed face, the failed field sobriety tests, and the admission to having consumed alcohol, Wester placed Hennessy under arrest and charged him with DWI and failing to maintain his lane.

Hennessy moved to suppress the evidence, arguing that there was an insufficient factual and legal basis for the motor vehicle stop, the investigative detention after the stop, or the arrest. The municipal judge held an evidentiary hearing on December 11, 2009, at which Wester testified on behalf of the State. The judge reserved decision. In a very brief oral decision delivered on February 4, 2010, the judge denied the motion.

Hennessy moved for reconsideration. The motion was argued and denied on April 9, 2010. Following denial of the motion, Hennessy entered a conditional plea of guilty and was sentenced in accordance with law.

Hennessy then filed an appeal to the Law Division. R. 3:23-8(a). The Law Division judge held the trial de novo on the record from the municipal court on December 16, 2010. After hearing the argument of counsel, he reserved decision. In a written opinion dated December 17, 2010, the judge made his findings of fact and conclusions of law. He concluded that there was a factual and legal basis for the stop, the field investigation, and the arrest. The judge affirmed the sentence of the municipal judge.1

This appeal followed.

II.

Hennessy raises the following issues on appeal:

POINT I: THE COURT BELOW ERRED BY MIS-STATING AND FAILING TO ASSESS THE OBJECTIVE EVIDENCE OF RECORD REGARDING PROBABLE CAUSE FOR THIS ARREST.

POINT II: THE STATE DID NOT DEMONSTRATE A REASONABLE AND ARTICULABLE SUSPICION THAT THE DEFENDANT VIOLATED THE LAW TO JUSTIFY STOPPING THE DEFENDANT'S VEHICLE.

POINT III: THE STATE DID NOT DEMONSTRATE A REASONABLE AND ARTICULABLE SUSPICION OF INTOXICATION TO JUSTIFY THE INVESTIGATIVE DETENTION OF THE DEFENDANT.

POINT IV: THE STATE DID NOT DEMONSTRATE PROBABLE CAUSE OF INTOXICATION TO JUSTIFY THE ARREST OF THE DEFENDANT.

Our role in an appeal such as this one is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Pursuant to Rule 3:23-8(a), the Law Division judge makes a de novo determination on the record from the municipal court, but must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Nevertheless, our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

Under the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property).

The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const. art. I, 7).

In State v. Pineiro, 181 N.J. 13, 20 (2004), the Supreme Court defined a field inquiry as "the least intrusive encounter," occurring when a police officer approaches a person and asks if he or she is willing to answer some questions. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). During such a field inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).

An investigatory stop, unlike a field inquiry, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. The motor-vehicle stop in this case was a Terry stop, rather than a field inquiry.

The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).

"To determine whether the State has shown a valid investigative detention requires a consideration of the totality of the circumstances." State v. Elders, 192 N.J. 224, 247 (2007); see also Privott, supra, 203 N.J. at 25-26 ("[A] reviewing court must 'evaluate the totality of circumstances surrounding the police-citizen encounter, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" (quoting Davis, supra, 104 N.J. at 504)). As the Supreme Court observed in Davis, supra, 104 N.J. at 505,

[s]uch encounters are justified only if the evidence, when interpreted in an objectively reasonable manner, shows that the encounter was preceded by activity that would lead a reasonable police officer to have an articulable suspicion that criminal activity had occurred or would shortly occur. No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity. Such a determination can be made only through a sensitive appraisal of the circumstances in each case.

In evaluating the "totality of the circumstances," we "are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra, 149 N.J. at 11).

We start our analysis with Wester's decision to stop Hennessy's vehicle. All that was required was a reasonable and articulable suspicion that Hennessy was engaged in illegal activity, in this case either a violation of N.J.S.A. 39:4-88(b) (failure to maintain the lane)2 or N.J.S.A. 39:4-50 (driving while intoxicated). A reasonable and articulable suspicion can be based on facts that, standing alone, would not be sufficient to procure a conviction for the suspected offense or offenses. State v. Heisler, 422 N.J. Super. 399, 413 (App. Div. 2011) (citing State v. Williamson, 138 N.J. 302, 304 (1994)). The facts in the record, as found by the Law Division judge on trial de novo, support his conclusion that Wester had a sufficient basis to make the stop.

We reach the same conclusion with respect to Wester's decision to ask Hennessy to get out of his car for field sobriety tests. Although Hennessy has presented arguments that might have convinced the judge to conclude otherwise, they were unsuccessful. There were facts in the record, such as Wester's testimony about bloodshot and watery eyes, a flushed face, and the odor of alcohol, to support the judge's determination. Hennessy's reliance on the issue of Wester's failure to administer tests before asking Broadwater to get out of the vehicle is misplaced, because there is no legal requirement that such tests be administered.

We also reject Hennessy's premise that the judge upheld the order to exit the car on the basis of officer safety. While it is true that the judge did cite a case concerning officer safety, State v. Smith, 134 N.J. 599, 609 (1994), the judge's opinion quite clearly set forth the basis of his decision:

In this case, I find that there was reasonable and articulable suspicion to ask the Defendant to exit the vehicle. Upon approaching the vehicle, Officer Wester detected the odor of alcohol and observed that the Defendant's complexion was flushed and that his eyes were bloodshot. Moreover, the Defendant acknowledged having three (3) glasses of wine over a four (4) hour period. The fact that the Defendant was able to speak clearly, follow instructions, and orient himself as to time and place does not negate Officer Wester's observation indicating that the Defendant was under the influence. Furthermore, there seems to have been no need for pre-exit testing, given these observations. Given the totality of the circumstances, I find that the command was objectively reasonable.

Finally, we address the issue of whether Wester had probable cause to arrest Hennessy. In doing so, we disregard completely the HGN test. See Doriguzzi, supra, 334 N.J. Super. at 533. We rely only on the initial observations made by Wester and the results of the two other field sobriety tests.

"'Probable cause' for an arrest exists where a police officer has a well-founded suspicion or belief of guilt. That suspicion or belief may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion." State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985). "[T]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer 'had reasonable grounds to believe' that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50]." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (alterations in original) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)) (internal quotations omitted).

Here, Hennessy attempted and was unable to complete the one-leg-stand test and the walk-and-turn test. He told Wester that he had physical problems, and there are documents in the record, albeit unsworn ones, that support Hennessy's assertion that he had disabilities that would make it difficult for him to perform such tests. Although competent medical evidence that a defendant cannot physically perform those field sobriety tests might well preclude their use as evidence to prove intoxication at trial, Hennessy cites no case for the proposition that a defendant's physical inability to perform a test precludes reliance on failure to complete the test in reviewing the totality of the circumstances surrounding a police officer's decision to make an arrest. We have found no such case.

In finding probable cause for the arrest, the Law Division judge explained his reasons as follows:

[T]he Defendant acknowledged consuming three (3) glasses of wine over a four (4) hour period, and Officer Wester detected the odor of alcohol emanating from the vehicle and observed that the Defendant had a flushed complexion and bloodshot eyes. While the Defendant had no difficulty walking to the front of his vehicle, he did not complete the tests requested.

Despite the Defendant's explanations, the narrow issue on appeal is whether there was probable cause to effectuate an arrest. Officer Wester had to deal with circumstances as they existed at the time of the stop. He was not required to take the Defendant at his word, but was instead required to exercise objectively reasonable judgment based upon his skill, training, and experience. Based upon his observations and experience, it was reasonable for Officer Wester to believe that the Defendant was operating a motor vehicle under the influence of alcohol. The standard of probable cause is far less than proof beyond a reasonable doubt. I find that the State has at least met its burden as to probable cause.

Because we find those reasons to be factually supported in the record and consistent with the legal principles outlined above, we affirm the judge's denial of the motion to suppress.

Affirmed.

1 Although procedurally incorrect, in that the judge should have sentenced de novo rather than "affirming" the municipal judge's sentence, we note that Hennessy has not challenged the sentence on appeal.

2 The Supreme Court held in State v. Regis, ___ N.J. ___, ___ (2011) (slip op. at 11-13) that the statute created a separate duty to remain within the lines of a driving lane without regard to whether the driver also intended to change lanes. Consequently, Hennessy's argument to the contrary is incorrect.