STATE OF NEW JERSEY v. DIANA S. VENUS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5177-04T25177-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIANA S. VENUS,

Defendant-Appellant.

 

Argued March 15, 2006 - Decided March 27, 2006

 
Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 05-010.

Kenneth W. Chamlin argued the cause for appellant (Chamlin, Rosen, Uliano & Witherington, attorneys; Marcie L. Mackolin, on the brief).

Mark P. Stalford, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mr. Stalford, of counsel and on the brief).

PER CURIAM

Defendant was convicted at a trial de novo on the charge of driving while intoxicated, N.J.S.A. 39:4-50. On appeal, she challenges the trial judge's order denying her motion to suppress evidence. We affirm.

Following the denial of her motion to suppress, defendant pleaded guilty to a violation of driving under the influence of alcohol. The Law Division imposed appropriate fines, penalties and costs, revoked defendant's driver's license for seven months, and ordered that she spend twelve hours in the Intoxicated Driver Resource Center. The only issue before this court is whether the trial court properly denied defendant's motion to suppress.

The offense occurred on September 22, 2004, on the Monmouth University campus. The Law Division judge summarized the facts, which were stipulated without testimony, as follows:

It was stipulated . . . that there was a police officer on the staff of Monmouth University Police Department, Milton Morris, he was a [duly] employed police officer of Monmouth University, and had been on [September] 22nd, 2004. On that date, while on the campus of Monmouth University, he stopped a motor vehicle being operated by this defendant. He has stipulated that he observed Ms. Venus fail to stop at a stop sign located on the campus university roadway.

Thereafter the officer conducted a routine motor vehicle stop and made an investigation which led to his determination that Ms. Venus was driving under the influence of alcohol. It was stipulated that the Monmouth University Police Department is a [duly] authorized police department, empowered by the West Long Branch municipal ordinances to enforce Title 39 of the New Jersey statutes.

It was further stipulated that Monmouth University was granted approval from the West Long Branch Board of Adjustment for the placement of the stop sign. It was also stipulated that neither the Borough nor the University received authorization and approval from the New Jersey Department of Transportation [DOT] for its placement of that sign as required under Title 39.

And finally it was stipulated that the officer, in good faith, relied upon the stop sign as his probable cause to stop defendant's vehicle, and thereafter arrest the defendant.

So what this all means is that there was a stop sign on the campus, that the defendant failed to stop for that stop sign, the officer pulled her over, the officer observed that she was under the influence of alcohol, but that stop sign was not authorized by the Department of Transportation, which is required under Title 39.

And the real issue in the case is whether a motor vehicle stop made by an officer, based upon a reasonable, articulable suspicion that a motor vehicle violation had occurred, where the violation cannot be proven by the State, requires that items seized as a result of the initial traffic stop be suppressed. In this case it's not an item it's a person.

In concluding that the police officer had a reasonable suspicion to stop defendant's vehicle, the judge found:

I find that the officer had a reasonable suspicion, maybe wrong, but a reasonable suspicion to believe that there was a driver on the roads of the University who had passed a stop sign without meeting the requirements of the statute, that is stopping and yielding to traffic so close as to create an immediate hazard.

Was his suspicion reasonable? Yes. He had no idea, I find, based upon the stipulation, he didn't testify. He had no idea that that stop sign had not been approved by the Highway Department. Is that suspicion articulable? Yes. . . .

So, I find that the officer had a reasonable and articulable suspicion.

An investigatory stop is valid if the officer has an articulable and particularized suspicion, based upon objective observation, that the person stopped either has or is about to engage in criminal activity. State v. Davis, 104 N.J. 490, 504 (1986). A reasonable suspicion that "'criminal activity is afoot'" is based upon the totality of the circumstances. State v. Williams, 317 N.J. Super. 149, 155 (App. Div. 1998) (quoting State v. Branch, 301 N.J. Super. 307, 318 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998)), certif. denied, 157 N.J. 647 (1999). While a reasonable suspicion is not easily defined, our Supreme Court has adopted the United States Supreme Court's definition that it is "'a particularized and objective basis for suspecting the person stopped of criminal activity.'" State v. Stovall, 170 N.J. 346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)).

The same test applies to a police officer's investigative stop of an individual for a traffic offense; that too requires an articulable and reasonable suspicion that the individual has committed the offense. State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997); State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990). Even if the driver is subsequently found not guilty of the traffic violation, so long as the officer had an articulable and reasonable suspicion to believe that the offense was committed, the initial stop would be proper. Murphy, supra, 238 N.J. Super. at 553-55; see also State v. Nugent, 125 N.J. Super. 528, 534 (App. Div. 1973) (same).

Applying the case law to the facts here, we agree with both the Municipal Court judge and the Law Division judge that Officer Morris had a reasonable and articulable suspicion to believe that defendant violated Title 39 of the New Jersey Statutes by failing to stop at the stop sign. It has been stipulated that: the Monmouth University Police Department was duly authorized and empowered to enforce Title 39; Officer Morris, at the time he made his stop, was not aware that the New Jersey DOT had not approved placement of the stop sign; defendant failed to stop at the stop sign; the stop sign was placed pursuant to an appropriate approval of the West Long Branch Zoning Board; and, at the time defendant failed to stop at the stop sign, there was probable cause to believe that she was operating her vehicle under the influence of alcohol. Under these circumstances, the officer had a reasonable and articulable suspicion to stop defendant's vehicle.

That the stop sign was not approved by the New Jersey DOT does not render the stop invalid. The facts available to the officer at the time of the stop, and the subsequent seizure of defendant's person, were sufficient to cause a person of reasonable caution to believe that defendant had violated the traffic laws. The officer was not aware that the DOT had not approved the stop sign's placement. It was reasonable for him to conclude that the stop sign was placed at the intersection after having received all necessary approvals. The lack of approval did not negate the reasonableness of the officer's actions. See State v. Pitcher, 379 N.J. Super. 308, 320 (App. Div. 2005) (officer's actions in stopping a vehicle relying on incorrect Division of Motor Vehicles (DMV) records that owner's license was suspended were objectively reasonable and not invalidated by erroneous information provided by DMV), certif. denied, ___ N.J. ___ (2006).

Defendant argues the stop should be invalidated based upon the officer's mistaken belief that the stop sign was properly placed. In support of the argument, defendant relies upon State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005). We do not find Puzio to be analogous. There, the officer stopped a passenger vehicle with commercial license plates because the car did not display business-identifying information. Id. at 380. The officer was under the mistaken belief that all commercial vehicles required business-identifying information to be displayed. Ibid. Because, however, the vehicle stopped was a passenger vehicle, it was exempt from that requirement; thus, the officer's understanding of the law was incorrect. Id. at 381-82. As a result, we concluded that the officer had no objectively reasonable basis to justify the stop. Id. at 382-83.

That is not the case here. When the officer stopped the vehicle, he did not make a mistake of law. He understood that it was a Title 39 offense for a vehicle not to stop at the stop sign. He may have been factually mistaken that the stop sign had received all necessary approvals, but he nevertheless had a reasonable basis to believe that the law had been violated when defendant failed to stop. The facts here are analogous to Pitcher, supra, 379 N.J. Super. 308, rather than to Puzio, supra, 379 N.J. Super. 378. The lack of DOT approval did not affect the officer's reasonably objective understanding. That defendant could have been acquitted of the traffic violation due to the lack of a DOT approval does not impact the validity of the stop. See Murphy, supra, 238 N.J. Super. at 555.

We affirm defendant's conviction.

 

(continued)

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8

A-5177-04T2

March 27, 2006