STATE OF NEW JERSEY v. JUOZAS STONGVILA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3736-05T13736-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUOZAS STONGVILA,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 1, 2006 - Decided January 30, 2007

Before Judges Wefing and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 62-05.

John Menzel, attorney for appellant.

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Thomas Cannavo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Juozas Stongvila appeals from a judgment of conviction entered on February 24, 2006 after a trial de novo. He was found guilty of refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. His license was revoked for a period of two years and the appropriate fines and penalties were imposed. After careful consideration of the record, we reverse.

The refusal charge arose out of a police operation called "Cops and Shops," in which undercover officers are posted in and around liquor stores to spot underage people attempting to purchase alcohol or people purchasing for someone underage. On May 27, 2005, Brick Township Police Officer Mark Storch was working undercover on a "Cops and Shops" detail. At 9:18 p.m., Officer Storch was in front of the Forbes Liquor Store in Brick when a store employee told him that "there was a gentleman inside who . . . appeared to be intoxicated." The Division of Alcoholic Beverage Control (ABC) prohibits liquor retailers from selling alcohol to persons who are obviously intoxicated. Nevertheless, defendant purchased a twelve-pack of beer in the store.

Storch did not follow up on the employee's remark, but instead went into the store to follow another shopper who "looked like they were underage." When Storch returned outside, the employee pointed out defendant who was walking through the parking lot carrying the twelve-pack. As Storch observed defendant, "standing to the side of his vehicle . . . he looked to be . . . in conversation with somebody and then he went to . . . the trunk of the car and put the 12-pack in the trunk and then got in the car and began to drive away." Storch observed nothing in defendant's appearance or demeanor that indicated he was intoxicated.

As defendant drove out of the parking lot, Storch notified his dispatcher to have a patrol car follow defendant because Storch could not leave his assignment. Brick Police Officer Eric Haugh received the dispatcher's "report of a possible intoxicated driver" and a description of defendant's vehicle and license plate number. Plain clothes officers in an unmarked police car also received the report. The unmarked car was nearby and followed defendant until Haugh arrived in the marked patrol car. Haugh confirmed defendant's license plate number with his dispatcher and stopped defendant immediately after seeing defendant's vehicle. Haugh testified that he did not follow defendant's vehicle, nor did he observe anything unusual about defendant's driving. The sole basis for Haugh stopping defendant was the radio dispatch with the vehicle description and license plate number.

Defendant was charged with refusal, N.J.S.A. 39:4-50.2; failure to wear a seatbelt, N.J.S.A. 39:3-76.2f; obstructed windshield, N.J.S.A. 39:3-74; failure to inspect, N.J.S.A. 39:8-1; reckless driving, N.J.S.A. 39:4-96; and driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant's motions for a jury trial and to suppress the evidence were denied and he entered a plea of guilty to the refusal charge. The State moved for a directed verdict of not guilty on the DWI charge on the ground that it could not prove the charge beyond a reasonable doubt. The motion was granted.

Defendant appealed to the Law Division, which affirmed denial of the suppression motion after de novo review. The Law Division found:

The Defendant has argued that the sole basis for his stop was based not on his bad driving but rather on a tip from a third party. As such, the argument continues[,] the police did not have the necessary probable cause to effectuate a stop. Thus, rendering all evidence gathered from that stop inadmissible. It must be noted that an officer has a duty to protect the public and prevent a crime. In not investigating any information regarding the possibility of a crime the officer would be derelict in his duty. State v. Davis, 104 N.J. 490, 505, 507 (1986).

Furthermore, reasonable suspicion based on a third party's tips permit the investigatory stops so long as, "The reliability of the tip is established through independent police work." State v. [Zapata], 297 N.J. Super. 160, 173 (App. Div. 1997).

The Law Division then analogized the employee's tip to that of an anonymous 9-1-1 caller, relying on State v. Golotta, 178 N.J. 205 (2003).

In Golotta the Court . . . found that although a police officer may not have witnessed driving that would normally lead to a motor vehicle stop that police officer could rely on an anonymous [9-1-1] call[er] that had witnessed such so long as there is minimal corroborative of fact such as a license plate number or description of the location and make of the vehicle

. . . . Furthermore, the Appellate Court has also stated that even, "[A]n anonymous call may provide a factual predicate necessary to justify an investigatory stop when there is corroboration of the information furnished." Again, State v. [Zapata], 297 N.J. [Super. at] 160 (1997).

A review of the record indicates that Ofr. Haugh, the officer that effectuated the stop, was responding to a radio transmittal that gave specific details as to the license plate number and the make of the vehicle. The basis of the transmittal was a tip made by a known liquor store employee from where the Defendant had just purchased alcohol. The source of the tip was an identified citizen who was witness to the man acting as if he were intoxicated. The Appellate Court has found that, "[t]he average witness of ordinary intelligence, although lacking special skill, knowledge and experience, who has had the opportunity of observation may testify whether a certain person was sober or intoxicated." State v. Pichadou, 34 N.J. Super. 177, 180 (App. Div. 1995).

Thus, Ofr. Storch had reasonable suspicion based on the observation of the store employee [that] the Defendant was driving while intoxicated. Although Ofr. Storch was the officer that received this tip, he could not effectuate the stop as he was obligated to remain at the assigned detail at the liquor store. Although the Defendant has argued that Ofr. Storch's inaction infers that there could be no reasonable articulable suspicion of possible drunk driving, Ofr. Storch . . . did not remain inactive. He radioed in the tip and made sure the Defendant was properly identifiable to other police officers by stating the make and the model of the Defendant's vehicle and identifying the license plate number, which was the information that Ofr. Haugh relied on.

As such, this Court finds that the stop effectuated by Ofr. Haugh was based on corroborative information from an identifiable citizen informant. This Court finds that there was sufficient articulable reasonable suspicion to effectuate the stop, and all evidence gathered from that stop is admissible.

In this appeal, defendant argues:

POINT ONE

FROM A REVIEW OF THE PARTICULAR FACTS OF THIS CASE, THE POLICE STOP HERE WAS ARBITRARY AND VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES IN THAT DEFENDANT NEITHER COMMITTED ANY VIOLATION OF LAW NOR WAS REASONABLY SUSPECTED OF ANY

POINT TWO

BECAUSE POLICE ACTIONS DEMONSTRATED THAT ANY TIP RELIED ON HERE LACKED CORROBORATION AND RELIABILITY, BECAUSE THE ACTIONS OBSERVED BY POLICE DEMONSTRATED NO THREAT WHATSOEVER TO THE PUBLIC, THE POLICE STOP OF DEFENDANT WAS UNREASONABLE AND UNCONSTITUTIONAL AND WARRANTS SUPPRESSION OF ALL EVIDENCE DERIVED THEREFROM

POINT THREE

THIS COURT SHOULD REDUCE DEFENDANT'S DRIVING PRIVILEGE REVOCATION FOR BREATH TEST REFUSAL FROM TWO YEARS TO SEVEN MONTHS BECAUSE, UNDER THE MOST RATIONAL READING OF THE STATUTES, THIS IS DEFENDANT'S FIRST CONVICTION FOR REFUSAL

In Golotta, "a cell phone user telephoned a 9-1-1 operator to report that a particular motor vehicle was being driven erratically on a public road." 178 N.J. at 209. The 9-1-1 "dispatcher relayed to the officers that . . . 'a citizen informant'" reported via cell phone "that a person in a certain vehicle was driving erratically. The officer was informed that the vehicle was 'all over the road' and 'out of control. It was weaving back and forth.'" Ibid. The caller provided a description of the vehicle, a license plate number and the location in which it was observed. Ibid. The two officers who received the call from the dispatcher converged on the vehicle and initiated the stop without having observed "any movements of the vehicle whatsoever." Id. at 210. The defendant was subsequently charged with DWI and moved to suppress the evidence on the ground that the officers had not observed any erratic driving and "lacked sufficient suspicion to stop the vehicle." Ibid. The municipal court denied the motion and the defendant entered a conditional guilty plea.

After de novo review, the Law Division reversed the municipal court, holding that "there was an insufficient basis contained in the record to justify the stop and, therefore, . . . the breathalyzer results must be suppressed." Id. at 211. We affirmed in a reported opinion. State v. Golotta, 354 N.J. Super. 477 (App. Div. 2002), rev'd, 178 N.J. 205 (2003). The Supreme Court granted certification and reversed our decision.

The Supreme Court noted initially that the test for a reasonable suspicion necessary to justify an investigatory stop is "'highly fact sensitive and, therefore, not readily, or even usefully, reduced to a neat set of legal rules.'" 178 N.J. at 213 (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). "An informant's tip is a factor to be considered when evaluating whether an investigatory stop is justified." Ibid. "[T]he degree of corroboration necessary to uphold a stop of a motorist suspected of erratic driving" is reduced when the initial tip is provided by an anonymous 9-1-1 caller who provides an adequate description of the vehicle, the location and the purportedly erratic driving. Id. at 218, 222. The Court's rationale for accepting the reduced degree of corroboration was based on three factors:

First, by its nature, a call placed and processed via the 9-1-1 system carries enhanced reliability not found in other contexts. Second, the conduct at issue is the temporary stop of a motor vehicle based on reasonable suspicion, not the more intrusive search of its contents or arrest of its driver, which would be governed by different rules. Third, an intoxicated or erratic driver poses a significant risk of death or injury to himself and to the public and, as such, that factor is substantial when evaluating the reasonableness of the stop itself.

[Id. at 218.]

The Court noted that a false report on the 9-1-1 system is a crime and, therefore, "a 9-1-1 call carries a fair degree of reliability inasmuch as 'it is hard to conceive that a person would place himself or herself at risk of a criminal charge by making such a call.'" Id. at 219. The information provided by a 9-1-1 caller is analogous to a report offered by a citizen informant and "should not be 'viewed with the same degree of suspicion that applies to a tip by a confidential informant.'" Id. at 220 (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 391 (2000)).

[Not] any information imparted by a 9-1-1 caller will suffice. The information must convey an unmistakable sense that the caller has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large. The caller also must place the call close in time to his first-hand observations. When a caller bears witness to such an offense and quickly reports it by using the 9-1-1 system, those factors contribute to his reliability in a manner that relieves the police of the verification requirements normally associated with an anonymous tip.

[Id. at 221-22.]

In State v. Zapata, 297 N.J. Super. 160, 173 (App. Div. 1997), certif. denied, 156 N.J. 406 (1998), we held that "an anonymous call may provide the factual predicate necessary to justify an investigatory stop when there is corroboration of the information furnished."

Here, the employee's report to Storch may be considered more reliable than that of an anonymous 9-1-1 caller, but the information provided by the employee to Storch did not, by itself, provide the reasonable suspicion necessary to justify an investigatory stop. On his direct testimony, Storch indicated that the employee said only that "there was a gentleman inside who . . . appeared to be intoxicated." On redirect examination after extensive cross, Storch added that the employee stated defendant was "rude and loud and boisterous." Sadly, in our society, perfectly sober individuals are frequently "rude and loud and boisterous." Moreover, Storch was not sufficiently concerned with the employee's "tip" to go into the liquor store to observe defendant's behavior. And, the liquor store sold the twelve-pack of beer to defendant when it was specifically prohibited by regulation from selling alcohol to an obviously intoxicated person and risked revocation of its liquor license by doing so. N.J.A.C. 13:2-23.1(b).

Nevertheless, Storch had the opportunity to make personal observations of defendant when defendant left the liquor store, walked to his car, opened the trunk and put the twelve-pack of beer into it, talked to another individual in the parking lot and drove out of the parking lot onto a busy highway. Storch acknowledged in his testimony that he observed nothing to indicate that defendant was intoxicated. When Haugh stopped defendant, he did so solely on the basis of the communication from the dispatcher who identified the vehicle. He had no opportunity to observe defendant driving or to make any independent, corroborative determination as to whether defendant was impaired before stopping the vehicle.

The State argues that "the police were presented with a choice of ignoring the liquor store employee['s tip] of a possible intoxicated driver or investigating it." We disagree - particularly when the store personnel did not refuse to sell alcohol to defendant. Since Storch observed nothing to indicate that defendant was impaired, and there was an unmarked police vehicle following defendant from the time he exited the liquor store parking lot until Haugh reached the scene in his marked vehicle, either the unmarked vehicle or Haugh could have continued to follow defendant and observe his driving. The employee's description of defendant as "rude and loud and boisterous" had no bearing on defendant's driving and could not, by itself, support the rationale stated by the Court in Golotta that "an intoxicated or erratic driver poses a significant risk of death or injury to himself and to the public." 178 N.J. at 218.

In our view, the evidence presented by the State was insufficient to support the "[r]easonable suspicion necessary to justify an investigatory stop" and the stop was illegal. State v. Stovall, 170 N.J. 346, 356 (2002).

The next step in our analysis is to determine whether the refusal conviction can stand where the initial stop was illegal. In State v. Badessa, we held that the defendant's refusal to take a breathalyzer test was sufficiently attenuated from an illegal stop to affirm his conviction on a refusal charge. 373 N.J. Super. 84, 91-92 (App. Div. 2004), rev'd, 185 N.J. 303 (2005). The Supreme Court reversed our decision and the refusal conviction on the ground that for "a refusal conviction, the State must prove that 'the arresting officer had probable cause to believe that the person had been driving' while under the influence and 'was placed under arrest' for DWI." 185 N.J. at 313 (quoting N.J.S.A. 39:4-50.4a). The Court explained that:

DWI and refusal to submit to a breathalyzer test are part of a comprehensive statutory scheme contained in N.J.S.A. 39:4-50 to -51, and may be viewed as two sides of the same statutory coin. The facts necessary to prosecute those two offenses are inextricably intertwined. . . .

The principal purpose of a police officer advising a driver about the penalties that flow from refusing to take the breathalyzer test is to impel the driver to take the test so that the State will have the evidence necessary to prosecute a DWI charge. Accordingly, the refusal statute and its severe penalties are directly related to the enforcement of the DWI statute.

[185 N.J. at 313-14 (internal citations omitted).]

The Court distinguished between refusal to take a breathalyzer test following an illegal stop from eluding or resisting arrest after an illegal stop, stating: "[w]e do not find comparable this refusal case and a case involving the commission of a new crime that directly threatens public safety, such as resisting arrest or eluding the police. Here, the act of refusal in no way endangered the safety of the police officer." Id. at 314 (citations omitted].

This case is similar to Badessa, in that the officer's request for defendant to submit to a breathalyzer test was based upon evidence obtained after the illegal stop - the field sobriety tests. Since that evidence would have been suppressed if the State attempted to proceed on the DWI charge, it cannot support probable cause for requesting defendant to take the breathalyzer test. Id. at 313-14. Accordingly, we reverse the conviction and remand to the Law Division for entry of a judgment of acquittal.

Reversed.

 

ABC regulations provide for revocation of a retailer's liquor license for sale of alcoholic beverages to an intoxicated person. N.J.A.C. 13:2-23.1(b).

The record indicates that Haugh administered field sobriety tests to defendant after the stop. Defendant's performance on those tests gave rise to probable cause to arrest defendant for suspicion of DWI. Defendant subsequently produced medical evidence demonstrating that he had incurred a foot injury shortly before his arrest. On that basis, the State moved for a directed verdict of not guilty on the DWI charge, because it could not prove the charge. The motion was granted.

(continued)

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A-3736-05T1

January 30, 2007