STATE OF NEW JERSEY v. JONATHON A. BONNEAU

NOT FOR PUBLICATION WITHOUT THE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.

JONATHON A. BONNEAU,

Defendant-Appellant.

_________________________________

August 6, 2015 2015

Submitted March 2, 2015 Decided

Before Judges St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 13-044.

McKenna, Dupont, Higgins & Stone, attorneys for appellant (Edward G. Washburne, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of Counsel; Martha Nye, Special Deputy Attorney General/ActingAssistant Prosecutor, on the brief).

PER CURIAM

Defendant Jonathon A. Bonneau was charged with driving while intoxicated, N.J.S.A. 39:4-50, careless driving, N.J.S.A. 39:4-97, reckless driving, N.J.S.A. 39:4-96, possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1, possession of a controlled dangerous substance (marijuana), N.J.S.A. 2C:35-10(a)(4), and two counts of possession of drug paraphernalia, N.J.S.A. 2C:36-2. Prior to his trial in the municipal court, the court granted defendant's motion to suppress evidence, which was seized after an officer stopped his vehicle at 2:25 a.m. on November 15, 2012. The State filed an interlocutory appeal to the Law Division, which reversed the suppression order. Defendant sought leave to appeal from the Law Division's reversal, which we denied. He later entered a conditional guilty plea to driving while intoxicated and appealed his conviction to the Law Division. He now appeals from the Law Division's December 4, 2013 order affirming his conviction, which the court entered after a trial de novo on the record.

On appeal he argues

THE WARRANTLESS STOP OF DEFENDANT'S VEHICLE CANNOT BE JUSTIFIED BY THE COMMUNITY CARETAKING FUNCTION OR ANY OTHER EXCEPTION TO THE WARRANT REQUIREMENT, THUS MANDATING SUPPRESSION OF ALL SUBSEQUENTLY SEIZED EVIDENCE.

The State disagrees and argues defendant's stop by the police officer was "lawful because it was supported by a reasonable and articulable suspicion."

We have considered these arguments in light of our review of the record and applicable legal principles. We affirm.

The facts are not in dispute. In response to defendant's suppression motion, the municipal court conducted a hearing at which the only witness was Marlboro Township Police Officer, Donna Gonzalez. She testified that she stopped the vehicle because she observed defendant driving out of a business's parking lot at that late hour. The business was located on a highway where "numerous burglaries [occurred] to different businesses on" that highway and, specifically, as to the location, "that particular business had just been burglarized . . . nine to ten days before" she observed defendant's vehicle. As a result, Gonzalez stopped defendant because she wanted to "make[] sure that whoever was in this car wasn't committing an additional burglary to the business, or maybe it was that person returning for more proceeds." In her written report of the event, Gonzalez described her actions as part of her performance of her "community caretaking function to assure there had been no foul play at the business after hours."

After considering Gonzalez's testimony and counsels' arguments, the municipal court granted defendant's motion. The court stated its decision was based on its prior experience in a different case in which the Law Division "reversed [the judge] on a similar basis of . . . someone being at a business [in the middle of the night] in the parking lot."

In response to the State's interlocutory appeal of the municipal court's order, the Law Divison conducted a trial de novo on April 12, 2013. After considering the record de novo and counsels' arguments, the Law Division reversed. It stated

Based on the totality of the circumstances including Officer Gonzalez's knowledge of the prior burglaries on [the highway] and at [that particular business], the hour of the evening, and the fact that [the business] had been closed for several hours, there was a reasonable basis of suspicion for Officer Gonzalez to initiate the motor vehicle stop.

As noted, defendant subsequently entered a guilty plea to the driving while intoxicated charge. The other charges were conditionally dismissed. The municipal court sentenced defendant, a second time offender, to a two year suspension of his driving privileges and penalties, fines and costs. The court stayed its sentence pending appeal.

Defendant appealed to the Law Division, which rejected his challenge to the denial of his suppression motion, for the same reasons stated by the first Law Division judge who heard the State's initial interlocutory appeal. The court entered an order denying the appeal, imposing the same sentence as the municipal court. The court granted defendant's request to continue the stay pending appeal. This appeal followed.

In an "appeal from a de novo trial on the record, [the appellate court] . . . consider[s] 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) (citation omitted). Our scope of review is limited; this court is bound to uphold the Law Division's findings if supported by sufficient, credible evidence in the record. State v. Johnson, 42 N.J. 146, 162 (1964). Regarding the sufficiency of the evidence to sustain a defendant's conviction, our review is limited to determining whether, viewed in its entirety and giving the State the benefit of all favorable inferences, the evidence was adequate for a reasonable factfinder to find guilt beyond a reasonable doubt. State v. Dekowski, 218 N.J. 596, 608 (2014); State v. D.A., 191 N.J. 158, 163 (2007); State v. Reyes, 50 N.J. 454, 458-59 (1967). Only if the Law Division's decision was so clearly mistaken or unwarranted "that the interests of justice demand intervention and correction," can this court review the record "as if it were deciding the matter at inception and make its own findings and conclusions." Johnson, supra, 42 N.J. at 162. But like the Law Division, this court is in no position to "weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence," and should therefore defer to the municipal court's credibility findings. State v. Barone, 147 N.J. 599, 615 (1997); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000); see alsoTrusky v. Ford Motor Co., Lincoln-Mercury Div., 19 N.J. Super. 100, 104 (App. Div. 1952) ("[A]n appellate court . . . 'has to operate in the partial vacuum of the printed record[.]'").

However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010). We owe no deference, to either the trial court's interpretation of the law or to its determination of the legal consequences that result from its fact-finding. State v. Stas, 212 N.J. 37, 49 (2012).

A similar standard applies to a court's decision to deny or grant a defendant's motion to suppress evidence. We defer to the trial court's factual findings on a motion to suppress, "unless they were clearly mistaken or so wide of the mark that the interests of justice require [ ] appellate intervention." State v. Elders, 192 N.J. 224, 245 (2007) (citation and internal quotation marks omitted). However, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).

Defendant's appeal raises a purely legal issue arising from undisputed facts. He specifically challenges Gonzalez's right to stop his vehicle under the circumstances presented and argues it was not a proper exercise of Gonzalez's community caretaking function as a police officer. We find no error, however, in the Law Division judge's conclusion that the stop was proper under the circumstances.

The propriety of an investigatory stop involves the community caretaking function1 and the common law right to inquire based upon the belief that criminal activity may be involved. State v. Matthews, 398 N.J. Super. 551, 557 (App. Div.), certif. denied, 196 N.J. 344 (2008), cert. denied, 555 U.S. 1159, 129 S. Ct. 1037, 173 L. Ed. 2d 480 (2009). Generally, investigatory stops of automobiles are justified by a reduced expectation of privacy by an occupant of an automobile. Ibid.

"A police officer may conduct an investigatory stop of a person if that officer has particularized suspicion based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing." State v. Coles, 218 N.J. 322, 343 (2014) (citation and internal quotation marks omitted). "The stop must be reasonable and justified by articulable facts; it may not be based on arbitrary police practices, the officer's subjective good faith, or a mere hunch." Ibid.; see also Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968) (stating an investigatory stop may not be predicated on "unparticularized suspicion or 'hunch'"); State v. Nishina, 175 N.J. 502, 511 (2003) (stating the State must possess "some minimal level of objective justification for making the stop" (citation and internal quotation marks omitted)).

The standard for "reasonable suspicion" is lower than the standard for probable cause. Id. at 511 (citing State v. Stovall, 170 N.J. 346, 356 (2002)). The "reasonable and articulable suspicion" standard does not require the State to prove that a defendant actually committed a motor vehicle violation or any other offense; the State need only prove the officer had a reasonable and articulable suspicion that an offense had been or was about to be committed. See State v. Williamson, 138 N.J. 302, 304 (1994); see also State v. Jones, 326 N.J. Super. 234, 239 (App. Div. 1999).

The determination of whether the officer has articulable reasons and a particularized suspicion must be based on the totality of circumstances with which the officer was faced. Nishina, supra, 175 N.J. at 511 (citing State v. Davis, 104 N.J. 490, 504 (1986)) (internal quotation marks omitted). The court must consider the officer's knowledge and experience, as well as the inferences that can be rationally drawn from the relevant facts. Ibid. (citing Davis, supra, 104 N.J. at 504). A reviewing court is to evaluate all of the circumstances surrounding the encounter, balancing the State's interest in public safety and effective law enforcement against an individual's right to be spared unwarranted police intrusions. Davis, supra, 104 N.J. at 504.

Applying these standards, we have no cause to disagree with the Law Division's judge's conclusion that Gonzalez justifiably stopped defendant. The circumstances confronting Gonzalez, a vehicle leaving late at night from the parking lot of a closed business, which was the subject of a recent burglary, in an area where other burglaries also recently took place, justified Gonzalez's actions. We have reached the same conclusion under similar but less compelling facts. See State v. Otero, 245 N.J. Super. 83, 92 (App. Div. 1990) (holding "[t]he minimal intrusion resulting from the officer's initial decision to determine why [a] vehicle was stopped at one o'clock in the morning in an otherwise unoccupied parking lot clearly must be subordinated to the State's interest in effective crime prevention").

Defendant argues the stop was unreasonable, and not made in pursuance of the officer's community caretaking function. In support of his argument, he cites to Cryan. There, while we acknowledged "the abnormal operation of [a] vehicle indicated that [a] driver might be in some difficulty, thereby presenting a hazard to himself or others," Cryan, supra, 320 N.J. Super. at 331, we found that "[i]nferences of that sort cannot be reasonably drawn from a driver's failure to proceed for five seconds after a red light has turned green when the only other vehicle in the area is a marked police car stopped immediately to the driver's rear." Ibid. Further, in Cryan, the officer testified he stopped Cryan's vehicle not out of community caretaking concern about Cryan, but "because he was under orders to stop every moving vehicle [in the borough] during his shift" due to concerns about burglaries. Id. at 327, 331. Contrary to defendant's argument here, his departing the particular location at 2:25 a.m. was not the equivalent of merely hesitating at a red light and driving slowly.

We agree with defendant that Gonzalez was not performing a community caretaker function. See State v. Williams, 410 N.J. Super. 549, 558 (App. Div. 2009) (stating the "deterrence of criminal conduct is a significant component of much police work, including routine foot patrol and car patrols" and is therefore not considered an "exercise of the police's community caretaking responsibilities"), certif. denied, 201 N.J. 440 (2010). However, we agree with the Law Division judge's analysis and conclusion that the officer operated under a reasonable and articulable suspicion that a crime had been or was about to be committed at the location where she stopped defendant, based on the totality of the circumstances, including the late hour and the recent history of burglaries in the area, particularly at the same establishment from which defendant was departing when he was stopped.

Affirmed.

1 A police officer's stop of a vehicle in the performance of his or her community caretaking function is an exception to the Fourth Amendment to the United States Constitution's, and the New Jersey Constitution's, protection against "unreasonable searches and seizures," which generally require a warrant issued upon probable cause. U.S. Const. amend. IV; N.J. Const. art. I, 7. "Local police officers . . . frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 714-15 (1973). For example, "[t]he community caretaking function may . . . be implicated where something abnormal is observed concerning the operation of a motor vehicle." Matthews, supra, 398 N.J. Super. at 559; see also State v. Garbin, 325 N.J. Super. 521, 526 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000). The United States Supreme Court has held automobile searches conducted as part of these "community caretaking functions" are not governed by the warrant requirement, or by "[t]he standard of probable cause [which] is peculiarly related to criminal investigations, not routine, non-criminal procedures." South Dakota v. Opperman, 428 U.S. 364, 370, n.5, 96 S. Ct. 3092, 3097, 49 L. Ed. 2d 1000, 1006; accord Colorado v. Bertine, 479 U.S. 367, 371-72, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739, 745-46 (1987). Instead, community caretaking searches must meet only the Fourth Amendment's "general standard of 'unreasonableness.'" Cady, supra, 413 U.S. at 448, 93 S. Ct. at 2531, 37 L. Ed. 2d at 718; see also State v. Harris, 211 N.J. 566, 581 (2012) (adopting the community caretaking doctrine as an exception to the warrant and probable cause requirements of the New Jersey Constitution).