STATE OF NEW JERSEY v. AL-SHARIF SCRIVEN

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

AL-SHARIF SCRIVEN,1

Defendant-Respondent.

____________________________

February 25, 2015

Argued January 12, 2015 Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-12-3190.

Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Ducoat, of counsel and on the brief).

Alison Perrone, Designated Counsel, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Perrone, on the brief).

PER CURIAM

By leave granted, plaintiff State of New Jersey appeals from the June 27, 2014 Law Division order, which granted defendant Al-Sharif Scriven's motion to suppress evidence seized during a warrantless search following the stop of a vehicle in which he was a passenger. We conclude there was no valid basis to stop the vehicle for violating N.J.S.A. 39:3-60, the "high beam statute," or pursuant to the community caretaker doctrine.

I.

We derive the following facts from the testimony of Essex County Sheriff's Officer David Cohen.2 At approximately 3:00 a.m. on November 3, 2013, Officer Cohen and his partner were on patrol at Independence Park in Newark. The park is located in a well-lit, mixed residential/commercial area between Adams and Van Buren Streets. Adams Street is a one-way street that runs parallel to the park with traffic flowing north. New York Avenue is a two-way street with traffic flowing east and west that ends at a "T" intersection with Adams Street. There is a stop sign on New York Avenue at the "T" intersection.

As Officer Cohen drove up Adams Street, he saw an unoccupied vehicle with what appeared to be a fraudulent temporary registration tag parked on the right side of the street at the "T" intersection. He double-parked his patrol car just behind the unoccupied vehicle and turned off the ignition, but left the headlights and tail lights activated. He exited the patrol car, "ran" the unoccupied vehicle's identification number, confirmed the vehicle was unregistered, and called for a tow truck.

While standing toward the front of his patrol car awaiting the tow truck, Officer Cohen saw a vehicle approximately one-fourth of a mile away on New York Avenue traveling in his direction. The vehicle was traveling at "normal speed," there was "nothing out of the ordinary" about the vehicle, and there were no other vehicles traveling in the vicinity; however, the vehicle's high beams were activated, which "blinded" the officer and impaired his ability to see inside the vehicle.

As the vehicle came to a stop at the "T" intersection, Officer Cohen used the strobe attachment on his flashlight to get the driver's attention and signal her to pull over. His intention in stopping the vehicle was to "just to basically, educate the driver to advise her that her high beams [were] on . . . you can't drive with your high beams on."

The driver stopped as directed and complied with Officer Cohen's request to produce her credentials. While speaking to the driver, the officer smelled burnt marijuana emanating from the vehicle's driver-side window. He then went to the front passenger window. When the passenger opened the window, he "immediately detected a stronger odor of [marijuana] from that side," and saw a hollowed-out cigar inside the vehicle. The front passenger, later identified as defendant, and a male passenger in the rear seat both denied having any controlled dangerous substance in their possession.

When defendant again denied having any controlled dangerous substance in his possession, Officer Cohen "asked [him] if he would step out of the vehicle." Officer Cohen admitted that: defendant could have refused to exit and was free to leave at that point; if defendant refused to exit, the officer would have returned to the driver and issued a summons for violating the high beam statute; and because he "had no physical . . . no visible proof of anything else going on in the vehicle," his issuance of the summons would have ended his investigation.

Before exiting the vehicle, defendant advised Officer Cohen that he had a handgun under his jacket. The officer ordered defendant not to move and to "keep his hands up." Officer Cohen retrieved a handgun from defendant and arrested him. Subsequently, a summons was mailed to the driver for violating the high beam statute, which provides as follows

Every person driving a motor vehicle equipped with multiple-beam road lighting equipment, during the times when lighted lamps are required, shall use a distribution of light, or composite beam, directed high enough and of sufficient intensity to reveal persons and vehicles at a safe distance in advance of the vehicle, subject to the following requirements and limitations: whenever the driver of a vehicle approaches an oncoming vehicle within five hundred feet, such driver shall use a distribution of light or composite beam so aimed that the glaring rays are not projected into the eyes of the oncoming driver, and in no case shall the high-intensity portion which is projected to the left of the prolongation of the extreme left side of the vehicle be aimed higher than the center of the lamp from which it comes at a distance of twenty-five feet ahead, and in no case higher than a level of forty-two inches above the level upon which the vehicle stands at a distance of seventy-five feet ahead.

[N.J.S.A. 39:3-60 (emphasis added).]

A grand jury indicted defendant for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-degree receiving stolen property (the handgun), N.J.S.A. 2C:20-7; fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3(f); and fourth-degree possession of a large-capacity magazine, N.J.S.A. 2C:39-3(j). Defendant moved to suppress the evidence seized from him after the stop.

Based on the evidence presented at the suppression hearing, Judge Martin G. Cronin granted defendant's motion. The judge determined that the driver did not violate the high beam statute because there was no oncoming vehicle within five hundred feet traveling in the opposite direction on New York Avenue. The judge also rejected the State's claim that the patrol car, which was parked with its ignition off, qualified as an oncoming vehicle. The judge relied in his analysis on State v. Witt, 435 N.J. Super. 608 (App. Div.), leave to appeal granted, 219 N.J. 624 (2014) which invalidated a motor vehicle stop and warrantless search where a driver with his high beams activated passed a police vehicle that was stationary at the side of the road. Judge Cronin also determined the community caretaker doctrine did not apply because there was no evidence the driver was impaired or there were any problems with her vehicle. This appeal followed.

On appeal, the State raises the following contentions

Officer Cohen's stop of [the] vehicle was objectively reasonable, and the order granting defendant's motion to suppress must be reversed.

A. Officer Cohen had a reasonable, articulable suspicion to believe that the driver violated N.J.S.A. 39:3-60.

B. Officer Cohen was also permitted to briefly stop [the] vehicle pursuant to the officer's community-caretaking role.

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 judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (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. We review de novo mixed questions of law and fact. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005).

II.

The State argues in Point A that Officer Cohen had a reasonable, articulable suspicion that the driver violated the high beam statute because he reasonably believed his patrol car, which was engaged in valid police activity on the roadway, was an "oncoming vehicle." At oral argument of this appeal, the State relied on Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014) to additionally argue that the stop was valid even if Officer Cohen was wrong.

"Consistent with the Fourth Amendment of the United States Constitution and its analog, Article I, paragraph 7 of the New Jersey Constitution, 'a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Golotta, 178 N.J. 205, 212-13 (2003) (quoting State v. Locurto, 157 N.J. 463, 470 (1999)). However, "where an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop." State v. Puzio, 379 N.J. Super. 378, 383-84 (App. Div. 2005).

In Puzio, a police officer saw a sports car that lacked any signage identifying the owner of the vehicle, even though the car bore a commercial license plate. Id. at 380. Believing this violated N.J.S.A. 39:4-46(a), which requires display of the business name and address on a commercial vehicle, the officer stopped the car, ultimately leading to the defendant's arrest for DWI. Ibid. We held that because the statute did not apply to passenger vehicles, the officer "had no objectively reasonable basis to support his conclusion that [the] defendant's car was being operated in violation of N.J.S.A. 39:4-46(a)[,] . . . his stop of the vehicle was unlawful and [the] defendant's motion to suppress should have been granted." Id. at 384.

As in Puzio, Officer Cohen misinterpreted N.J.S.A. 39:3-60. The statute does not prohibit the use of high beams, even in well-lit urban areas and even where the police are standing in a roadway conducting valid police activity. By its plain language, the statute only prohibits a driver's use of high beams "when approaching an oncoming vehicle within five hundred feet." "[T]he object of the statute is to avoid the operation of the high beams of one vehicle causing difficulties for the driver of another vehicle approaching in an opposite direction." Witt, supra, 435 N.J. Super. at 615-16. Thus, the statute requires that an "oncoming vehicle" must be a vehicle "in operation and in the lane of traffic opposite to the alleged offender." Id. at 615.

Officer Cohen's patrol car was stationary and unoperated and it was not in the lane of traffic on New York Avenue opposite the driver. Thus, the patrol car was not an "oncoming vehicle" for which the driver was required to deactivate her high beams. Accordingly, it was not objectively reasonable for Officer Cohen to believe that the driver was in violation of N.J.S.A. 39:3-60 when she was traveling up New York Avenue with her high beams activated with no oncoming vehicles within five hundred feet. To hold otherwise would impermissibly permit police officers to stop a vehicle just because the vehicle's high beams are activated.

Heien does not change this outcome. In Heien, supra, while following a vehicle whose driver looked "very stiff and nervous," a police officer noticed that only one of the vehicle's brake lights was functioning, which he believed was a violation of North Carolina's motor vehicle statute governing brake lights. 574 U.S. ___, ___, 135 S. Ct. at 534, 190 L. Ed. 2d at 480. After stopping the vehicle and obtaining the defendant's consent to search, the officer found a bag of cocaine, which led to the defendant's arrest. Id. at ___, 135 S. Ct. at 534, 190 L. Ed. 2d at 480-81.

The brake light statute was ambiguous as to whether it required one or two working headlamps. Id. at ___, 135 S. Ct. at 535, 190 L. Ed. 2d at 481. The North Carolina Court of Appeals found that the statute required only one working brake light, and concluded that the officer's mistaken understanding of the motor vehicle laws invalidated the initial stop and subsequent seizure because it was "objectively unreasonable." Ibid. The North Carolina Supreme Court reversed, concluding that the officer could have reasonably, even if mistakenly, read the statute to require that both working brake lights be in good working order. The United State Supreme Court affirmed, noting that reasonable mistakes of fact cannot defeat an officer's objectively reasonable suspicion that the law is being violated, and concluding that mistakes of law "are no less compatible with the concept of reasonable suspicion." Id. at ___, 135 S. Ct. at 536, 190 L. Ed. 2d at 482-83.

Unlike the statute in Heien, N.J.S.A. 39:3-60 is clear and unambiguous. The plain language of N.J.S.A. 39:3-60 requires that the "oncoming vehicle" be in operation and in the lane of traffic opposite to the alleged offender. That was not the case here. In addition, in New Jersey, there is no good faith exception to the exclusionary rule. Puzio, supra, 379 N.J. Super. at 383 (citing State v. Novembrino, 105 N.J. 95, 157-58 (1987)). Just because Officer Cohen may have acted in good faith does not justify the illegal stop.

III.

The State argues, alternatively, in Point B that the stop was justified pursuant to the community caretaker doctrine. We disagree.

The community caretaker doctrine represents a narrow exception to the warrant requirement. State v. Diloreto, 180 N.J. 264, 282 (2004). The doctrine may be implicated where a police officer observes something abnormal about the operation of a motor vehicle. State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992). In Martinez, a police officer observed the defendant traveling at less than ten miles per hour in a twenty-five-miles-per hour zone at 2:00 a.m. Id. at 77. We observed that such abnormal conduct suggested a number of objectively reasonable concerns: there might be something wrong with the car or driver, or the slow-moving vehicle could present a safety hazard to vehicles traveling behind it. Id. at 78. We recognized that these concerns triggered the "community caretaker function." Ibid.

In State v. Cohen, 347 N.J. Super. 375 (App. Div. 2002), a police officer saw that the driver-side window of a passing vehicle was tinted black, preventing him from seeing inside. Id. at 376-77. The officer stopped the vehicle and confirmed that the window had been darkened by an after-market product in violation of Title 39. Id. at 377, 380. However, separate and apart from the motor vehicle violation, we found the stop justified on the basis that the "officer's belief that the darkly-tinted windows represented a significant obstruction . . . [was] a sufficient reason to implicate 'the community caretaking function' and permit inspection of what appear[ed] to be a hazardous vehicular condition that deviates from the norm." Id. at 381.

In contrast here, the exclusive basis for the vehicular stop was Officer Cohen's mistaken belief that the driver violated N.J.S.A. 39:3-60. Although the State now posits that the driver's high beams, even if not violative of the statute, nevertheless created an unsafe condition implicating the officer's community caretaker role, the record contains no proof that operation of the vehicle otherwise presented a traffic safety hazard or endangered the safety and welfare of defendant, the officer, or others on the road at the time. Indeed, Officer Cohen himself did not express any public safety concerns as a caretaker, and appears to have acted solely pursuant to law enforcement objectives, believing the driver to be operating a vehicle in contravention of law. Absent such concerns, the automobile stop cannot pass muster as a public safety measure and accordingly, we perceive no basis for invoking the narrowly tailored community caretaker doctrine. To hold otherwise would essentially approve the community caretaker doctrine as a per se basis to stop a motor vehicle just because the vehicle's high beams are activated.

1 Also referenced as Al-Aharif Scriven in documentation.

2 The State presented no other witnesses at the motion hearing.