STATE OF NEW JERSEY v. KEVIN W. RIGGINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0497-05T40497-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN W. RIGGINS,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 23, 2007 - Decided June 19, 2007

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-07-1315.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Kevin W. Riggins appeals from his conviction on a charge of certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7. Notwithstanding defendant's plea of guilty, his right to challenge on appeal the denial of his motion to suppress is preserved by Rule 3:5-7(d).

On appeal, he raises the following claims:

I. THE TRIAL COURT ERRED IN DENYING THE SUPPRESSION MOTION, BECAUSE THE DEFENDANT'S BRIEF RESISTANCE TO AN ILLEGAL ARREST DID NOT DISSIPATE THE TAINT OF THE ONGOING POLICE MISCONDUCT.

II. THE JUDGMENT OF CONVICTION MUST BE AMENDED TO REFLECT THE TWO DAYS OF JAIL CREDIT AWARDED AT THE SENTENCING HEARING.

We disagree with defendant's contention in Point I that the trial judge erred by denying his motion to suppress. We agree with his contention in Point II that the judgment of conviction should be amended to award one additional day of jail credit.

I.

The facts are not disputed, and we quote from Judge Garofolo's memorandum of decision:

On June 25, 2003, Patrolman Scott Handson of the Somers Point Police Department was on patrol operating K55 radar. At approximately 1:00 a.m. - 1:15 a.m. on suspicion that the defendant was speeding, he conducted a motor vehicle stop at the intersection of Route 9 and New York Avenue. After approaching the driver, he noted a strong odor of alcohol and asked whether or not he had been drinking. The driver responded that he had two beers. He was thereupon asked to exit the vehicle to perform roadside sobriety tests. There were four other occupants in the car including the defendant who was seated in the rear seat behind the driver.

Also arriving on the scene was Patrolman Dill. After administration of the roadside sobriety test to the driver, he was placed under arrest for suspected driving while intoxicated. Two other officers arrived at or about that time. It was also determined that the driver's license had been suspended. The driver was taken into custody by Officer Highland. Inasmuch as the vehicle was not registered to the driver, Officer Handson asked if others in the car had a license.

One of the passengers offered a driver's license which was "run" resulting in a finding that there was a warrant for that person's arrest. . . . The person who was subject of the warrant . . . was asked to get out of the vehicle and . . . was placed under arrest. Three people remained in the car at that point. Officer Handson determined that pursuant to the so-called "John's Law" the motor vehicle would have to be towed. All passengers were told to get out of the vehicle.

The first to do so was the front [seat] passenger who was asked for identification and who responded that he did not have any but gave his name and date of birth. Thereafter, the defendant was told to get out of the vehicle and was asked for identification. Upon stepping out of the motor vehicle he immediately fled. He was pursued by Officers Handson and Dill who caught up to him and tackled him. The defendant struggled to break free but was subdued and placed under arrest. The distance the defendant fled before being apprehended was approximately 150 yards. A search of this person disclosed a .38 caliber handgun which is the subject of this motion to suppress.

Defendant does not challenge the judge's conclusion that the police had a reasonable, articulable suspicion that a motor vehicle infraction was being committed at the time the officer stopped the vehicle for speeding. Nor does defendant quarrel with the conclusion that Officer Handson made observations from which he could reasonably infer that the driver was intoxicated, and therefore subject to arrest. Defendant also does not disagree with the conclusion that the officers were required to inquire of the passengers as to whether or not they possessed a valid driver's license so that one or more could drive the vehicle away from the scene.

After reaching those conclusions, Judge Garofolo determined that when defendant fled the scene, rather than subject himself to the pat-down that defendant had observed police perform on the other passengers, he was entitled to do so. Relying on State v. Tucker, 136 N.J. 158, 169-70 (1994), the judge held that because the State did not allege, and could not prove, that defendant had engaged in any suspicious behavior or that he was suspected of any previous criminal conduct at the time he fled from police, his flight was lawful. Stated differently, the judge concluded that defendant's flight from police after he exited the vehicle was not sufficient to justify a seizure of defendant unless other circumstances justifying such stop were present.

At the time Judge Garofolo rendered his decision, State v. Crawley, 187 N.J. 440, cert. denied, ___ U.S. ___, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), had not yet been decided. Crawley makes it clear that whenever police are "lawfully performing an official function," a citizen may not flee or resist arrest even if the initial seizure, or order to stop, was unlawful. Id. at 451. "[S]tatutes and interpretive case law require that a defendant submit to an illegal detention and that he take his challenge to court." Id. at 455. Here we have no difficulty concluding that Officers Handson, Highland and Dill were in the course of "lawfully performing an official function" at the time they ordered defendant to step out of the vehicle. They did so in order to determine if defendant possessed a valid driver's license that would have permitted him to lawfully drive the car from the scene after the driver had been arrested. Police were obligated to find someone to assume responsibility for the car rather than risk the driver posting bail and while still intoxicated resume driving the car. N.J.S.A. 39:4-50.22, -50.23 (John's Law).

Even if the seizure of defendant might have been constitutionally improper, defendant was not entitled to struggle with police who were "lawfully performing [the] official function" required of them by John's Law. As Judge Garofolo correctly held, a person is not entitled to use force to resist an arrest by a police officer even though the arrest itself is unlawful. State v. Mulvihill, 57 N.J. 151, 156-57 (1970).

Once defendant was arrested on the charge of resisting arrest pursuant to N.J.S.A. 2C:29-2, the officers were entitled to search him incident to that lawful arrest. State v. Evans, 181 N.J. Super. 455, 459-60 (App. Div. 1981). Accordingly, the gun found on defendant's person during that search was lawfully seized as incident to a lawful arrest. Judge Garofolo properly denied defendant's motion to suppress that weapon.

The conviction is affirmed. The matter is remanded for correction of the judgment of conviction to award two days of jail credit, June 25 and June 26, 2003, rather than the one day of credit for June 25, 2003 specified on the judgment of conviction.

 
Affirmed, and remanded for correction of the judgment of conviction.

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A-0497-05T4

June 19, 2007