STATE OF NEW JERSEY v. JOSHUA L. CHAFFEE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6071-11T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JOSHUA L. CHAFFEE,

Defendant-Respondent.

_______________________________

December 20, 2012

Argued December 12, 2012 - Decided

Before Judges Sapp-Peterson and Haas.

On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-046.

Paula Jordao, Assistant Prosecutor, argued the cause for appellant (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

Jacqueline Bilinkas argued the cause for respondent (Edward J. Bilinkas, attorney; Mr. Bilinkas, on the brief).

PER CURIAM

We granted the State leave to appeal from the Law Division's June 22, 2012 order suppressing evidence of possible drug use by defendant Joshua Chafee. Having reviewed the record in light of the contentions advanced on appeal, we affirm.

I.

According to the proofs presented by the State at the suppression hearing in municipal court, Mount Olive Township Police Officer Joseph Abrusci was on routine patrol on May 26, 2011. Officer Abrusci is certified as a "drug recognition expert."

At approximately 11:15 p.m., the officer parked his marked patrol car in front of a convenience store and went in to buy a soda. After making his purchase, he remained in the store where he talked to the night crew manager and watched the other customers "mulling around" the premises.

Through the window at the front of the store, Officer Abrusci observed defendant pull up and park his car. He observed nothing unusual about the way defendant was driving or in the manner in which defendant got out of his car and walked into the store.

Once defendant entered the store, however, Officer Abrusci testified defendant "saw me and he just kind of lost some color. He . . . had a very nervous appearance about him." The officer stated that "[w]hat jumped out at [him] was how red [defendant's] eyes were, that it was very obvious to me." Officer Abrusci also stated that defendant's eyes were "glassy." Based upon his observation of the condition of defendant's eyes, Officer Abrusci believed it likely that defendant had been smoking marijuana.

Defendant "quickly went to the back" of the store and "was mulling around in the back corner." Defendant spoke to a store employee "for a short period of time" and, "on a couple of occasions," Officer Abrusci saw him "peeking over the top of the shelf to see where I was." The officer began to leave the store and defendant came "around the corner of [the] aisle towards the register." Officer Abrusci looked back at the register and defendant "immediately just turned around and darted to" the part of the store where the coffee machines were located. Defendant then continued to look "over the top of the coffee pots to see where [the officer] was at."

Officer Abrusci testified he was initially "concerned that maybe [defendant] was looking at . . . either robbing the store or thinking, that based on what my observations are with his eyes, that he was under the influence and didn't want to have direct contact with me." In spite of his asserted suspicion that a robbery might be in the offing, however, the officer left the store after "a couple of minutes."

As he did so, Officer Abrusci heard defendant ask the cashier if the store sold tobacco because he "wanted to roll his own cigarettes." The cashier told defendant the store did not sell loose tobacco, but it did carry rolling papers. Officer Abrusci testified that defendant purchased rolling papers. He did not purchase any tobacco. The cashier did not ask defendant for proof of his age. Officer Abrusci stated that defendant did not slur his words and the officer made no observations from the way defendant was walking around the store that indicated he was under the influence of alcohol or drugs.

Officer Abrusci, who knew where defendant was parked from having observed him arrive, was in the parking lot as defendant came out of the store and walked to his car. There was nothing unusual in the way defendant was walking. Defendant got into his car, started it, and "had his hand on the gear shift, was getting ready to put it in reverse." At that point, the officer came to the window of the car and told defendant "I needed to see some I.D., wanted to speak with him." According to Officer Abrusci, defendant became "very defensive" and asked why he was being singled out from all the other customers who had been in the store. Defendant asked "if he could leave" and the officer "told him no [and] explained that [he] was still investigating this."

Officer Abrusci told defendant he was concerned that he might not be of legal age to buy tobacco and, therefore, he needed to check his identification. After some further discussion, defendant provided his identification, which confirmed he was twenty-two years old on the date of this incident.1

The officer then asked defendant to close his eyes and defendant complied. Officer Abrusci testified that defendant "had very severe eyelid tremors, which again is very common with people under the influence of cannabis." However, at no time did the officer smell any marijuana either on defendant or emanating from his car. He also did not smell any alcohol.

Nevertheless, the officer "advised dispatch" he was going to conduct some field sobriety tests on defendant and he asked for back-up. He then required defendant to get out of the car.2 The officer testified defendant was reluctant to do so, was "a little unsteady on his feet," and, "[a]t one point he actually leaned on . . . held onto the hood of the car, the fender area for support."

The officer told defendant that his eyes were "very red, that his pupils were dilated." Defendant explained he had allergies. Officer Abrusci testified he believed defendant did have allergies, but that his eyes were so red that the officer suspected he had been using marijuana. The officer also testified that a person who came out of a store into a parking lot at night could experience a change in the dilation of his or her pupils.

The officer ordered defendant to perform "a Romberg balance test," which required him to place his heels and toes together, with his hands to his side, close his eyes, tilt his head back, estimate the passage of thirty seconds, and then open his eyes. According to Officer Abrusci, defendant had "eyelid tremors, he swayed," and he opened his eyes after twenty-three seconds.3 Next, defendant was required to walk heel to toe and then turn around. The officer testified defendant did not step heel to toe for five out of eighteen steps and he was unsteady as he made his turn.

Finally, defendant performed the Horizontal Gaze Nystagmus (HGN) test which, according to the officer, indicated that this condition "was not present." However, the officer stated defendant was unable to "get his eyes to cross" and "rebound dilation was also observed" when a flashlight was shone in defendant's eyes. These observations, Officer Abrusci testified, were consistent with marijuana use.

At the conclusion of the tests, Officer Abrusci asked defendant if he had been smoking marijuana and defendant denied it. The officer then patted defendant down and placed him under arrest. No marijuana was found on his person. Defendant's car was not searched, but the officer stated there was no marijuana in plain view inside it.

Defendant received three municipal court summonses in Mount Olive Township. He was charged with driving while intoxicated, N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; and failure to notify DMV of a change of address, N.J.S.A. 39:3-36. Defendant was also charged in a municipal court complaint with being "under the influence of marijuana in violation of N.J.S.A. 2C:35-10b."

Defendant filed a motion to suppress, which was granted by the municipal court judge. The State appealed this decision to the Law Division. On June 22, 2012, the motion judge heard argument on the motion, reviewed the transcript of the municipal court proceedings and listened to the audio DVD. In an oral decision, the judge granted defendant's motion to suppress the evidence obtained by the State during the stop outside the store.

The judge rejected the State's contention that Officer Abrusci had merely conducted a field inquiry outside the store. The judge found the officer suspected defendant was under age to purchase tobacco and "wanted to investigate the circumstances surrounding that purchase." The officer waited for defendant to leave the store, get in his car and start it before approaching him. Defendant was not permitted to leave once the officer came to his car. Thus, the judge concluded that the officer had conducted an investigatory stop to determine whether a violation of the tobacco sale to minors law had occurred.

The officer did not begin "inquiring into the defendant's reddened eyes" until after defendant had provided his identification and demonstrated he was over the age of nineteen. Because the purpose of the investigatory stop had ended at that point, however, the judge found the officer had no reasonable basis to begin a new investigation into defendant's alleged drug use. There had been nothing unusual in the way defendant had driven into the store parking lot. He walked and spoke normally inside the store. After listening to the audio DVD, the judge found defendant's "speech was clear, and that it was not slurred and it was not slow" as he spoke to the officer outside the store.

Thus, "other than just seeing red eyes," the judge found the officer had "no particularized suspicion of drug use" and his "suspicion that the defendant was under the influence was drawn from Officer Abrusci's subjective hunch[.]" This, the judge concluded, was not enough to justify continuing the investigatory stop or conducting field sobriety tests. Therefore, the judge granted defendant's suppression motion.

II.

On leave to appeal, the State has presented the following argument:

POINT I.

THIS STOP WAS LAWFUL.

A. Officer Abrusci properly initiated a field inquiry when he approached the defendant.

B. Officer Abrusci had the requisite articulable suspicion to conduct an investigatory stop of defendant.

Our standard of review on a motion to suppress is limited. We must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" State v. Mann, 203 N.J.328, 336 (2010)(quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

We will reverse only if convinced that the motion judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). However, our review of the motion judge's legal conclusions is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (citing State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011)), certif. denied, 205 N.J. 78 (2011).

The standards governing the constitutionality of field inquiries and investigatory stops are well-settled. "The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures." State v. Privott, 203 N.J. 16, 24 (2010). Based on the minimal nature of the intrusions involved with field inquiries and investigatory stops, however, these encounters are permissibly conducted without a warrant or probable cause.

A field inquiry unaccompanied by compulsion to respond to questions or limitation on the person's freedom to move is not an intrusion sufficient to implicate the constitutional protection. Id. at 24; Elders, supra, 192 N.J. at 246. Thus, no justification is required before a police officer approaches a citizen and asks whether he or she is willing to answer some questions or by offering his or her voluntary answers to these questions as evidence in a criminal trial. State v. Davis, 104 N.J. 490, 497 (1986). "[M]ere field interrogation, without more, by a police officer does not involve 'detention' in the constitutional sense so long as the officer does not deny the individual the right to move." State v. Sheffield, 62 N.J. 441, 447 (1973).

Contrary to the State's contention, Officer Abrusci's detention, questioning, and testing of defendant can neither be characterized nor justified as a field inquiry. As the motion judge correctly noted, the officer could have initiated a field inquiry either in the store or after defendant walked outside, but "a field inquiry did not occur in this case." Instead, the officer waited until defendant had left the store, gotten into his car, and started it, before approaching him. He directed defendant to stop because he wanted to ask him some questions. Defendant immediately protested and told the officer he did not wish to answer any questions. Defendant also asked the officer if he could leave and the officer told him no.

"It is recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed 2d (1968). Here, defendant was plainly not free to leave once the officer ordered him not to put his car in gear and to answer his questions. Therefore, any evidence obtained by the officer after defendant was "seized" cannot be introduced in evidence under the field inquiry exception to the Fourth Amendment.

The State's argument that the officer conducted a constitutionally-permissible investigatory stop also lacks merit. A valid investigatory stop must be "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion" that the person has been or is about to engage in criminal activity. State v. Rodriguez, 172 N.J.117, 126-27 (2002)(quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. There is sufficient credible evidence to support the motion judge's determination that the officer's investigatory detention of defendant after he provided his identification failed this test because it was not based on specific and articulable facts necessary to give rise to a reasonable suspicion of criminal activity. Elders, supra, 192 N.J. at 249-50.

The State argues that defendant appeared nervous as he "mulled" around the store, his eyes were red and he only appeared to the officer to be seventeen or eighteen years old. However, nervousness is not an uncommon reaction to police encounters and is not in itself indicative of criminal activity. Id. at 249-50. By the time the officer left the store, he no longer believed defendant was preparing to commit a robbery. The color or condition of a person's eyes may be equally indicative of substance abuse or any number of other medical or non-medical conditions. Thus, we agree with the motion judge that none of these factors justified the investigatory stop.

Because defendant was attempting to obtain tobacco products from the cashier, however, the officer was justified in stopping defendant to investigate whether he was old enough to make such a purchase. Once an investigatory stop has been made, however, it

must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.

[Davis, supra, 104 N.J. at 502 (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229, 38 (1983)).]

Because the officer stopped defendant because he thought he was too young to purchase tobacco, the purpose of the stop was achieved once defendant provided the officer with his identification verifying he was of legal age. At that point, the officer should have permitted defendant to proceed on his way and there was no longer a constitutional basis for detaining him.

Contrary to the State's argument, there were no "specific or articulable facts" justifying defendant's further detention and the requirement that he participate in field sobriety testing. We review the totality of circumstances surrounding the stop. The officer observed defendant drive into the parking lot and walk into the store without any difficulty. He moved around the store without staggering or displaying any sign of intoxication or drug use. He spoke to a store employee and he spoke to the cashier, with no indication he was slurring his words. He purchased rolling papers, which the officer testified was not unlawful. Defendant had no difficulty walking out of the store, getting into his car, or starting it. He never moved the car, so there was no indication he was driving erratically. He answered the officer's questions in a clear tone, again without slurring his words. The officer did not smell any marijuana or alcohol on defendant or emanating from his car.

Weighed against the foregoing is the mere fact that, according to the officer, defendant's red eyes were indicative of marijuana use. Even here, defendant told the officer he had allergies, which the officer did not dispute. Thus, there is ample evidence in the record to support the motion judge's finding that the officer's continued detention of defendant was based merely on his "hunch" that he had used marijuana sometime prior to entering the store. This, the judge reasonably found, was not sufficient to warrant defendant's further detention once he produced his identification. Thus, any evidence obtained by the officer after that point was properly suppressed.

Finally, we agree with the judge, that even if the encounter was viewed as a motor vehicle stop, rather than as a Terry stop, this evidence would still need to be suppressed. A police officer may stop an automobile when he or she has an articulable and reasonable suspicion that the driver has committed an offense. State v. Locurto, 157 N.J. 463, 470 (1999). As we have noted, the officer in this case had an "articulable and reasonable suspicion" that defendant was not old enough to purchase tobacco. However, the officer had no such suspicion that justified the further detention and unconstitutional investigation that followed.

1 Pursuant to N.J.S.A. 2C:33-13.1, it is unlawful for anyone to sell or give "any cigarette paper or tobacco in any form" to a person under nineteen years of age.

2 The officer did not position his vehicle so that a visual DVD of these tests was made. However, an audio DVD was submitted in evidence at the suppression hearing.

3 Officer Abrusci testified that an estimation that was within five seconds of thirty, plus or minus, was considered "normal."