STATE OF NEW JERSEY v. MICHAEL GLEASON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6031-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL GLEASON,

Defendant-Appellant.

___________________________________________

August 31, 2011

 

Argued October 12, 2010 Decided

 

Before Judges Rodr guez, Miniman and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5897.

 

Gary A. Kraemer argued the cause for appellant (Daggett, Kraemer, Kovach & Gjelsvik, attorneys; Mr. Kraemer, on the brief).

 

Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief).

 

PER CURIAM

Defendant Michael Gleason was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, first in the Scotch Plains Municipal Court, and again following a trial de novo in the Law Division. We affirm.

On February 23, 2006 at 2:08 a.m., Scotch Plains Police Patrolman Edward J. Budzinski received a radio dispatch, which he described in the following testimony:

[PROSECUTOR]: And can you explain what happened at around two o'clock on the morning of February 23rd?

 

[BUDZINSKI]: Sure. I received a call over the radio from dispatch that a beige colored Chevy Blazer was in Mountainside. It stopped and asked somebody for directions. The person that he had stopped and asked for directions, then in turn called Mountainside Police Headquarters, notified that the man was possibly intoxicated.

 

Mountainside relayed the call to us, have a beige Chevy Blazer traveling 22 westbound. That it had asked directions to Route 78, and was possibly intoxicated.

 

Q. Now at the time you received this dispatch, where were you located?

 

A. I was Route 22 eastbound.

 

Q. Do you know where approximately?

 

A. About Terrill Road.

 

Q. As a result of receiving that call, did you take any action?

 

A. Yes. I -- I started heading up towards Park Avenue.

 

Q. And that would be on 22?

 

A. Correct.

 

Q. Still traveling east?

 

A. Eastbound.

 

Q. And did anything occur while you were traveling the eastbound lane?

 

A. As I was about to make a right onto Park Avenue, I observed a vehicle in question go past me 22 westbound.

 

Q. And -- and can you describe the vehicle in question?

 

A. Sure. It was a beige colored Chevy Blazer.

 

Q. And when you visualized or observed the -- the Chevy Blazer, what did you do next?

 

A. I made the right onto Park Avenue. Went over [the] Park Avenue overpass, and got onto Route 22 westbound.

 

Q. When you were first -- or when you first got onto Route 22 westbound, about how far behind him were you?

 

A. Approximately 200 yards.

 

Q. And what did you do once you started going westbound on Route 22?

 

A. I noticed that he was swerving in and out of his lane, or in his lane, rather. He was swerving in his lane. Didn't go out of the lane. As I got closer, we were at the light at -- he caught the red light at Terrill Road and Route 22 West. As the light turned green, I activated my overhead lights.

 

Q. And did he -- or did the individual respond to the fact you activated your lights?

 

A. At that time he continued straight for approximately another 100 yards, and finally came to a slow stop.

 

Scotch Plains Patrolman Michael Tardi also heard the dispatch and testified at the suppression hearing.

[PROSECUTOR]: Officer, you were involved with with the stop of [defendant] on February 23rd, 2006.

 

[TARDI]: Yes.

 

Q. Is that correct? And as you just heard, you met with up with Officer Budzinski after he had stopped [defendant]. Is that correct?

 

A. Yes.

 

Q. Did you hear any of the information that was conveyed by your dispatch regarding this particular stop?

 

A. Yes.

 

Q. Do you have recollection of that?

 

A. Yes.

 

Q. Can you tell the court what you recall from the dispatch?

 

A. We had a bulletin from our dispatcher stating that someone contacted the Mountainside Police Department and said that -- a male driving a tan Chevy Blazer stopped and asked them directions to Route 78. The person apparently gave them direct -- gave that person directions, and after the driver left, they contacted the police department.

 

Q. Do you remember why they contacted the police department?

 

A. Because they thought that he was -- he was intoxicated?

 

Q. And after you heard -- heard that message, what did you do?

 

A. I took my patrol car, and I parked on Bonnie Burn Road on the way up to -- to get to Route 78 you would have to turn onto Bonnie Burn Road. Because I knew we had other units on Route 22 West.

 

Q. And how did you end up at the scene with [DEFENDANT] and Officer Budzinski?

 

A. I -- Officer Budzinski called out with a car stop that he had a tan Chevy Blazer stopped. I responded as backup.

 

Defendant was arrested and charged with DWI. The police administered an Alcotest which revealed a blood alcohol concentration (BAC) of 0.16 percent.

In the municipal court, defendant moved to suppress evidence based upon the absence of a reasonable and articulable basis to justify the stop of defendant's vehicle. The motion was denied. Consequently, defendant entered a guilty plea to the charge conditioned on his right to challenge the Alcotest results. The municipal judge ordered defendant to pay a $300 fine; $200 DWI surcharge; $50 VCCB penalty; $50 DEDR penalty; $75 SNSF; and $33 court costs. The judge also imposed a thirty-day jail term; twelve hours counseling at an Intoxicated Driver Resource Center; and a seven-month suspension of driving privileges. The jail term was suspended conditionally upon completion/payment of the other sanctions. The suspension of defendant's driving privileges was stayed pending appeal.

After the Supreme Court decided State v. Chun, 194 N.J. 54 (2008), defendant was permitted to withdraw his plea and entered into a new agreement with the State. The municipal court judge reduced the driver's license suspension portion of the sentence to three months. The sentence was stayed pending appeal to the Law Division.

The Law Division judge denied defendant's motion to suppress and found him guilty. The judge imposed the same sentence as the Scotch Plains Municipal Court,and vacated the stay of sentence. Defendant moved for a stay of a portion of the sentence pending appeal. The judge denied the motion.

Defendant appealed the conviction and moved for a stay of sentence pending appeal. We granted the motion in part by staying the suspension of his driver's license. State v. Gleason, No. M-7391-08 (App. Div. Sept. 22, 2009).

On appeal, defendant contends:

THE ANONYMOUS TIP DID NOT HAVE SUFFICIENT INDICIA OF RELIABILITY TO SUPPORT THE STOP OF THE DEFENDANT'S VEHICLE.

 

We disagree.

In reviewing an order denying a motion to suppress evidence, we must defer to the motion judge's factual findings, "so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). On the other hand, we accord no special deference to the motion judge's legal conclusions. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

The sole issue presented here is primarily a legal one, i.e., whether the testimony provided by Budzinski and Tandi established the validity of the stop of defendant's vehicle, which led to the up-close observations by Budzinski and ultimately resulted in an arrest for DWI. We conclude the State's proofs supported the validity of the stop.

First, we conclude from the evidence presented that the stop of the Blazer was an investigatory stop. "A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including minor traffic offenses, has been or is being committed." State v. Carty, 170 N.J. 632, 639-40, modified by 174 N.J. 351 (2002). The Supreme Court, referencing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), outlined the standards by which the reasonableness of a police investigatory stop of a person or an automobile is to be judged. State v. Arthur, 149 N.J. 1, 7 (1997). In Terry, the United States Supreme Court recognized that the Fourth Amendment's protection against unreasonable search and seizure limited law enforcement's ability to conduct investigatory stops and protective searches of persons suspected of criminal activity. 392 U.S. at 19, 88 S. Ct. at 1878, 20 L. Ed. 2d at 904. The Court held that the reasonableness of the police conduct in conducting an investigatory stop, in light of the Fourth Amendment, could be generally assessed by "'balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'" Id. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905 (quoting Camara v. Municipal Court, 387 U.S. 523, 534-35, 536-37, 87 S. Ct. 1727, 1733-35, 18 L. Ed. 2d 930, 938-40 (1967)). The standard is an objective one: "would the facts available to the officer at the moment of the seizure or the search[,] warrant a man of reasonable caution in belief that the action taken was appropriate?" Id. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906 (internal quotations omitted). When determining if the officer's actions were reasonable, consideration must be given "to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Id. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. Thus, the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Id. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 906.

The Terry holding was expanded four years later as follows:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

 

[Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 616-17 (1972).]

 

In short, there must be "some objective manifestation that the suspect was or is involved in criminal activity." State v. Thomas, 110 N.J. 673, 678 (1988) (citing United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 628 (1981)).

In 1975, Terry was explicitly applied to automobile stops. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S. Ct. 2574, 2582, 45 L. Ed. 2d 607, 618 (1975). Thus, "officers . . . may stop vehicles only if they are aware of specific articulable facts, together with the rational inferences from those facts, that reasonably warrant suspicion that the vehicles" were involved in criminal activity. Ibid. Thus, to justify an investigatory stop of a motor vehicle, an officer must have only a reasonable suspicion based on articulable facts rather than probable cause.

Here, the investigatory stop was supported in part by information provided to the officer by an unknown informant. We are therefore required to review the legal authorities setting guidelines for the admissibility of information received from an unknown informant.

In State v. Keyes, 184 N.J. 541, 555 (2005), the Supreme Court held that, "[i]nformation that the police receive from confidential informants may serve as a valid basis for a court to find probable cause and issue a warrant." A confidential informant's identity is known to police, but it is not disclosed to defendant, nor a magistrate issuing a warrant, nor a fact-finder at a subsequent trial. In order to establish probable cause for a warrant however, the record must sufficiently support the informant's veracity and basis of knowledge under the totality of circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 230-32, 103 S. Ct. 2317, 2328-29, 76 L. Ed. 2d 527, 543-44 (1983). Thus, "[b]roadly speaking, the reliability of a known police informant is judged by any indicia of the informant's veracity and an analysis of the basis of the informant's knowledge." Byrnes, N.J. Arrest, Search & Seizure, 6:3-2(d) (2010) (citing Keyes, supra, 184 N.J. at 555-56). An informant's veracity may be shown by past reliability and the informant's basis of knowledge, which may "be inferred from the level of detail and amount of hard-to-know information disclosed in the tip." Ibid.

There is a distinction between a confidential informant aiding law enforcement in one or several investigations and an unknown informant who seeks out the police to give information about a current occurrence. Our Supreme Court has observed that, "[a] report by a concerned citizen" or a known person is not "viewed with the same degree of suspicion that applies to a tip by a confidential informant." Wildoner v. Borough of Ramsey, 162 N.J. 375, 390 (2000). That is, "'[d]ifferent considerations obtain . . . when the informer is an ordinary citizen.'" Ibid. (omission in original) (quoting State v. Davis, 104 N.J. 490, 506 (1986)). "There is an assumption grounded in a common experience that such a person is motivated by factors that are consistent with law enforcement goals." Davis, supra, 104 N.J. at 506; see also State v.Stovall, 170 N.J. 346, 362 (noting that "[w]hen an informant is an ordinary citizen, New Jersey courts assume that the informant has sufficient veracity and require no further demonstration of reliability").

Here, we are dealing with an unknown rather than a known informant. It is settled that, "[a]n anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 127 (2002) (citing Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)). However, a 9-1-1 caller "place[s] his anonymity at risk by virtue of using the 9-1-1 system" because the records required to be made of such calls "provide the police with an ability to trace the identity of the caller in a manner that enhances his reliability." State v. Golotta, 178 N.J. 205, 225-26 (2003). The Court analogized the information supplied by a 9-1-1 caller to a report offered by a citizen. Id. at 220. The Court found that such a call should not be "'viewed with the same degree of suspicion that applies to a tip by a confidential informant.'" Ibid. (quoting Wildoner, supra, 162 N.J. at 390). The Court concluded that "the 9-1-1 caller must provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or 'similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller.'" Id. at 222 (quoting United States v. Wheat, 278 F.3d 722, 731 (8th Cir. 2001), cert. denied, 537 U.S. 850, 123 S. Ct. 194, 154 L. Ed. 2d 81 (2002)). In Golotta, the 9-1-1 caller was an unknown informant who placed his anonymity at risk by virtue of using the 9-1-1 system. Golotta, supra, 178 N.J. at 225.

Here, we conclude that the information relayed by the Scotch Plains dispatcher to Budzinski and Tardi, provided the officers with a reasonable and articulable suspicion, that an investigatory stop of the Blazer was warranted. We also conclude that the veracity of the caller was sufficiently established by the information provided and the circumstances including: (a) a beige Blazer was seen; (b) the vehicle was traveling on Route 22 from the direction of Mountainside; and (c) this observation occurred shortly after the dispatch transmission, judging by Budzinski's and Tardi's testimony that they proceeded immediately to the area of Route 22. We also take judicial notice that Mountainside and Scotch Plains share a boundary line, which is about 1.6 miles from the intersection of Route 22 and Park Avenue, where Budzinski first saw the beige Blazer.

We recognize that Budzinski merely saw defendant swerving within his own lane before stopping the Blazer. However, the fact that the erratic movement was within the defendant's lane of travel, does not diminish the officer's reasonable suspicion.

Affirmed. Defendant must report to the Criminal Case Manager, Union County, no later than September 9, 2011 to arrange for the surrender of his driver's license.