STATE OF NEW JERSEY v. MUTHONE MWANGI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2889-06T52889-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MUTHONI MWANGI,

Defendant-Appellant.

_________________________________

 

Submitted September 17, 2007 - Decided September 26, 2007

Before Judges Lintner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 43-06.

Terry S. Bogorad, attorney for appellant.

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Monalisa Captan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Muthoni Mwangi, was charged in Harrison with driving while intoxicated, N.J.S.A. 39:4-50, and refusal to submit a breath sample, N.J.S.A. 39:4-50.2. Defendant filed a motion to suppress, asserting the stop and request for defendant to submit to sobriety tests was improper, lacking probable cause. A hearing on defendant's motion was conducted on May 15, 2006. The only witness to testify was Officer Alexander Loy of the Harrison Police Department. On June 7, 2006, the Municipal Court judge denied defendant's motion to suppress. Defendant pled guilty in municipal court to refusal, preserving her right to appeal the Municipal Court judge's determination validating the stop and sobriety test. Defendant appealed and the Law Division judge found that the stop and subsequent administration of a field sobriety test at police headquarters were proper.

The essential facts established at the suppression hearing are as follows. Loy was on routine patrol during the midnight shift when he was dispatched at approximately 1:03 a.m. to the Bergen Mall, based upon information called in by an individual in the mall's parking lot that a female driver in a small dark car had driven over the curb in the Wendy's parking lot across the street. Loy arrived at the scene and the individual identified himself as the person who had called in the report and pointed to defendant's vehicle. Loy approached defendant, who was seated in her vehicle, and asked if she had driven over the curb. Defendant responded, "no" and Loy checked the front of her car for damage. There was none.

Loy noticed that defendant had bloodshot eyes and asked her if she had been drinking. She responded that she had had a glass of wine earlier at 6:30 p.m. during dinner. Based upon the report called in, defendant's bloodshot eyes, and her admission that she had had a glass of wine, Loy asked defendant to step out of the vehicle. However, because of the rainy conditions and the slope in the parking lot, Loy concluded that the conditions were not conducive to performing a psychophysical sobriety test (field sobriety test). According to Loy, "I [advised] her that she was not under arrest, and [asked] would she be compliant to go back to headquarters and . . . perform the test[] there." He told her that if she proved to be capable of driving he would take her back to the parking lot and her vehicle. She complied.

At headquarters, Patrolman Bates conducted a field sobriety test. After defendant failed to perform the test successfully, she was asked to submit to a breathalyzer test. She refused. On cross-examination, Loy was asked what he would have done had defendant refused to accompany him to headquarters. He responded that he did not know.

Both the Municipal Court judge, based upon the testimony given, and the Law Division judge, based upon a de novo review of the municipal court record, found that the called-in tip and the information received at the scene from the anonymous caller provided sufficient suspicion to warrant an investigative stop. They determined that the officer correctly concluded, based upon defendant's bloodshot eyes, her admission that she had consumed alcohol, and the information provided by the individual, that it was his duty to continue the investigation by giving a field sobriety test to protect the public welfare. They both found that defendant was not under arrest at the time and voluntarily accompanied Loy to police headquarters. Based on defendant's subsequent failure to pass the field sobriety test, her bloodshot eyes, her admission, and the information given by the anonymous caller, both judges concluded that the State had sufficient probable cause to believe defendant was driving while intoxicated, thus supporting the request for a breathalyzer test.

On appeal, defendant raises the following points:

POINT ONE

THIS DEFENDANT'S CONVICTION[S] SHOULD BE REVERSED AS [THE LAW DIVISION JUDGE] IMPROPERLY CONDUCTED THE DE NOVO PROCEEDING.

POINT TWO

[THE LAW DIVISION JUDGE] IMPROPERLY FOUND THAT THE OFFICER HAD SUFFICIENT CAUSE TO BELIEVE THAT THIS DEFENDANT WAS INTOXICATED.

POINT THREE

[THE LAW DIVISION JUDGE] IMPROPERLY APPLIED THE STANDARD FOR AN INVESTIGATORY STOP HERE AS THE DEFENDANT WAS NOT FREE TO LEAVE.

We reject defendant's contentions and affirm substantially for the reasons set forth by the Law Division judge. We make the following additional observations. The Law Division judge made it clear that he relied on his own independent findings of fact after reviewing the evidence in the Municipal Court record. State v. States, 44 N.J. 285, 293 (1965); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). Defendant's contention that the Law Division judge failed to make de novo findings of fact is belied by the record and does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Secondly, contrary to defendant's contention, we are satisfied that the facts associated with the anonymous caller were sufficient to support a reasonable suspicion to justify the investigatory stop. Where a 9-1-1 caller bears witness to an offense that implicates potential injury to vehicular drivers and quickly reports it based upon first hand knowledge, the police are relieved "of the verification requirements normally associated with an anonymous tip." State v. Golotta, 178 N.J. 205, 221-222 (2003). "[T]he . . . caller must provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or 'similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller.'" Id. at 222 (quoting United States v. Wheat, 278 F.3d 722, 731 (8th Cir. 2001), cert. denied, 537 U.S. 850, 123 S. Ct. 194, 154 L. Ed. 2d 81 (2002)). Here, Loy was dispatched by headquarters following the report by the anonymous caller, who explained he had witnessed defendant striking the curb in the parking lot. Loy responded to the location immediately and arrived in time to receive further confirmation from the caller, who identified himself as the caller and pointed to defendant's vehicle as the one he had observed.

The information concerning defendant's driving in the parking lot when combined with Loy's observations of defendant's eyes and her concession that she had consumed alcohol provided additional information warranting further investigation by way of a field sobriety test. "Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate . . . ." State v. Nishina, 175 N.J. 502, 511 (2003). Loy's explanation concerning the need to continue his investigation before permitting defendant to operate her vehicle, the conditions which made it unfair to conduct a field sobriety test in the parking lot, and his testimony that defendant was not under arrest but instead agreed to accompany him to headquarters to conduct a field test, provided sufficient credible evidence to support the finding that defendant voluntarily went with him and was not under arrest. Under those circumstances, it would be improper for us to make new credibility findings. State v. Locurto, 157 N.J. 463, 471 (1999).

Once defendant failed the field sobriety test, there were reasonable grounds to believe that defendant was driving while intoxicated and to arrest and justify administration of the breathalyzer. See State v. Moskal, 246 N.J. Super. 12 (App. Div. 1991). The decision to administer the breathalyzer based upon probable cause at that point was appropriate.

 
Affirmed.

(continued)

(continued)

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A-2889-06T5

September 26, 2007