STATE OF NEW JERSEY v. STEPHEN A. HARRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN A. HARRIS,

Defendant-Appellant.

________________________________

December 16, 2013

Submitted: December 4, 2013 Decided:

Before Judges Fuentes and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 30-12.

Mark D. Abramson, attorney for appellant.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief).

PER CURIAM

Following denial of his suppression motion in municipal court, defendant Stephen Harris entered a conditional guilty plea to driving while intoxicated, N.J.S.A. 39:4-50. The judge sentenced defendant as a third offender to 180 days in jail and imposed a ten-year license revocation, with the additional requirement that he install an ignition interlock device for a thirteen-year period, together with appropriate fines and penalties. Upon de novo review, the Law Division judge denied defendant's suppression motion, found defendant guilty, and imposed the identical sentence.

On appeal, defendant raises the following contention:

BECAUSE THE ARRESTING OFFICER WAS NOT PRIVY TO THE INFORMATION COMMUNICATED TO DISPATCH BY THE [9-1-1] CALLER, SHE DID NOT HAVE A SUFFICIENT QUANTITY OF INFORMATION SO THAT SHE, AND THE COURT, MAY BE CERTAIN THAT THE VEHICLE STOPPED WAS THE SAME AS THE ONE IDENTIFIED BY THE CALLER.

We affirm.

Just after midnight on June 19, 2011, a citizen who identified herself as "Shannon" called 9-1-1 from inside the 7-11 store in Beach Haven. Shannon reported that "there's a guy who is extremely drunk on the side of the building about to get in a car. He's kind of laying in the car right now drunk singing." Shannon stated that the car was "white" and "on." She could not provide the model of the car or the license number because she and the other patrons of the store were "afraid to go over there 'cause he might try to fight them 'cause he's kind of really wasted right now." She described the man as "kind of hefty with a beer belly. He's like short, gray hair, kind of going bald[.]"

At 12:07 a.m., Officer Lisa Schmied of the Beach Haven Police Department was dispatched to the 7-11. She testified that there is only one 7-11 in Beach Haven and, when she arrived at 12:09 a.m., there was only one white car in the parking lot.1 Officer Schmied observed a man in the car, who resembled the description provided by Shannon. The man, who was later identified as defendant, began to back up. Officer Schmied "asked him to stop, put his vehicle in park and turn the vehicle off." Defendant complied. The officer observed that defendant's "eyes were bloodshot and watery" and, when she asked him for his driver's license, registration, and insurance, she "noticed there was alcohol emanating from his breath."

Officer Schmied asked defendant to get out of his car and she administered "some sobriety tests." A subsequent breathalyzer test of defendant's blood alcohol content (BAC) revealed that his BAC was 0.20%.

After hearing oral argument, the municipal court judge denied defendant's suppression motion, ruling that the 9-1-1 dispatch provided Officer Schmied with an articulable and reasonable suspicion to stop defendant's car in the 7-11 parking lot. Defendant entered a conditional guilty plea, reserving his right to appeal the denial of his suppression motion. Following a de novo review, the Law Division judge denied defendant's suppression motion, convicted defendant of DWI, imposed an identical sentence, and stayed the sentence pending appeal.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J.1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid.

Defendant contends that Officer Schmied unlawfully stopped his car because she did not have an articulable suspicion that defendant had committed a traffic violation. He also argues that the officer "did not have a sufficient quantity of information so that she, and the court, may be certain that the vehicle stopped was the same as the one identified by the caller." We disagree.

"[A] police officer is justified in stopping a motor vehicle when he [or she] has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Locurto, 157 N.J. 463, 470 (1999). "The test is 'highly fact sensitive and, therefore, not readily, or even usefully, reduced to a neat set of legal rules.'" State v. Golotta, 178 N.J. 205, 213 (2003) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)).

"An informant's tip is a factor to be considered when evaluating whether an investigatory stop is justified." Ibid. The degree of corroboration necessary to uphold a stop of a motorist is reduced when the initial tip is provided by a 9-1-1 caller who provides an adequate description of the vehicle, the location, and the purported traffic violation. Id. at 218, 222. The Supreme Court has explained:

The information must convey an unmistakable sense that the caller has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large. The caller also must place the call close in time to his [or her] first-hand observations. When a caller bears witness to such an offense and quickly reports it by using the 9-1-1 system, those factors contribute to his [or her] reliability in a manner that relieves the police of the verification requirements normally associated with an anonymous tip.

[Id. at 221-22.]

Here, Shannon provided an adequate description of defendant, his intoxicated state, his car, and its location. She based the information she provided on her first-hand observations of defendant as they were occurring. Shannon thoroughly described an "extremely drunk" driver, who was about to leave the 7-11 parking lot, thereby endangering himself and others. Shannon remained on the telephone until Officer Schmied arrived at the store. There was only one 7-11 in Beach Haven and defendant, who resembled the description that Shannon provided, was in the only white car in the entire parking lot. Officer Schmied was able to immediately corroborate Shannon's report that defendant appeared intoxicated.

Under these circumstances, we discern no basis for disturbing the trial judge's decision to deny defendant's motion to suppress. Golotta, supra,, 178 N.J. at 222.

Affirmed.

1 Shannon was still on the phone with the 9-1-1 operator when the officer arrived on the scene and she observed the officer entering the parking lot.