STATE OF NEW JERSEY v. STEVEN GIANSANTI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3512-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN GIANSANTI,

Defendant-Appellant.

___________________________________

 

Submitted May 4, 2010 - Decided

Before Judges Carchman and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 30-08.

Law Offices of Hoffman DiMuzio, attorneys for appellant (Peter J. Bonfiglio, III, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Steven Giansanti, appeals from the denial of a motion to suppress evidence after a trial de novo in the Law Division. R. 3:23-8(a). Defendant had been convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), following entry of a guilty plea in the Mantua Township Municipal Court. The Law Division's de novo review again ended in defendant's conviction and the imposition of the same sentence. On appeal, defendant argues:

POINT I

THE PROCEDURES UTILIZED BY THE MANTUA TOWNSHIP POLICE DEPARTMENT VIOLATED THE REQUIREMENTS OF STATE V. KIRK.

POINT II

THE GREETER/OFFICER'S ACTION IN QUESTIONING THE DEFENDANT AND REQUESTING THE DEFENDANT'S CREDENTIALS EXCEEDED THE GREETER/OFFICER'S AUTHORITY AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS.

We reject these arguments and affirm.

According to the State's proofs, on September 8, 2007, at approximately 2:30 a.m., defendant pulled his motorcycle into a police DWI sobriety checkpoint set up near the intersection of Route 45 and Washington Avenue in Mantua Township. The Mantua Township Police Department's (MTPD) request to operate the checkpoint had been approved by the County Prosecutor the prior month. MTPD Patrolman Shawn Butler was responsible for "greeting" the southbound vehicles stopping at the checkpoint. Butler described his duties as follows:

I was advised [by Sergeant Brian Grady at the pre-shift briefing] to greet every vehicle notifying them that we are doing a checkpoint and give them a pamphlet on checkpoint, and when the traffic was heavy we were sending randomly every fifth vehicle down to the secondary staging area, and then when it got a little bit lighter we started sending every third vehicle down, or if I had observed any violations I could send them down, or detected alcohol or an intoxicated driver, send them to the secondary staging area.

[(Emphasis added.)]

At the pre-shift briefing, Butler had been provided with Standard Operating Procedure #40 (SOP #40), a document setting forth the Gloucester County Prosecutor's Office's regulations for conducting DWI checkpoints. Butler was also provided with an accompanying September 7, 2007 memorandum authored by Grady, who oversaw all aspects of the checkpoint. Butler read both of these documents at the briefing prior to conducting his checkpoint duties.

The documents detail the procedures to be followed by officers operating the checkpoint. Specifically, paragraph thirteen of SOP #40 provides in part:

Traffic will not be stopped at random.

. . . .

No vehicle out of the predetermined sequence may be directed to the second checking station unless there is individualized reasonable suspicion indicating that the driver and/or passenger is in violation of any criminal or motor vehicle law. This also includes vehicle violations of equipment, inspection, or other laws pertaining to the motor vehicle statutes.

. . . .

If the driver is observed to be obviously under the influence by the officer at the first checking location, he/she will be removed from the vehicle and a uniformed officer will drive the vehicle to the second checking location.

Grady's memorandum reiterated these points.

Further, SOP #40 required a "master registration log sheet (see attached) will be maintained" to record those vehicles exhibiting "plain view violations, as well as predetermined numbered vehicles" stopped. The master log sheet is a spreadsheet-type document with columns indicating the time of the stop, license plate number, race and sex of the driver, number of passengers, a space for "comments" and, finally, whether the driver was diverted to the second checkpoint area because of an obvious violation or because he or she was in the predetermined numbered sequence.

At the checkpoint in issue, Sergeant James Mikulski maintained the master registration log. Mikulski explained that only cars diverted from the greeting point to the second checkpoint area were logged into the master log book. The greeting officer placed a post-it note on the windshield of every vehicle diverted to the second checkpoint indicating the reason for the diversion and Mikulski used that information to complete the log sheet.

Defendant was not one of the predetermined numbered vehicles in the sequence. Rather, he was directed to the second checking location because Butler, upon greeting defendant, detected signs of intoxication. Butler explained:

The subject was operating his motorcycle southbound on 45 and I greeted him at the checkpoint and when I greeted him and I was explaining to him the checkpoint I detected the odor of alcohol on his breath, and at that point I had him step off of his motorcycle and get his documents out of his wallet. He had a tou[g]h time getting the documents out of his wallet and when he finally did so he dropped his wallet. He went to pick the wallet up and he was swaying, looked as though he was going to fall over.

Butler asked defendant if he had been drinking. Defendant replied he had "two beers and a bottle of wine." Additionally, Butler observed defendant had "slurred speech [and] his face was flush and sweaty."

Defendant was escorted to the checkpoint's second staging area. His blood alcohol level (BAC) was recorded as .14. See N.J.S.A. 39:4-50(a) (stating BAC of .08 or more is presumptive of DWI). Defendant was arrested and given summonses for DWI and reckless driving, N.J.S.A. 39:4-96.

Defendant moved to suppress the evidence of intoxication before the Mantua Township Municipal Court, arguing the checkpoint was improperly conducted, resulting in an illegal warrantless stop and search. At the municipal court hearing, the State presented the testimony of Butler, Grady and Mikulski and introduced numerous documents into evidence regarding the procedures followed in the operation of the checkpoint.

Defendant challenged a single aspect of the checkpoint procedures employed: interpreting paragraph thirteen of SOP #40, he asserted Butler, as the greeting officer, was required to log all vehicles entering the checkpoint, not merely those diverted to the second checkpoint area. Defendant argued that the failure to log every vehicle afforded the greeting officer an impermissible level of discretion, which could lead to "playing favorites" as to who is diverted to the second checkpoint area. Defendant maintained constitutional protections require the recordation of all vehicles to ward off any temptation to "let friends go or . . . bring in any car he wanted and just put a number 5 on it."

The municipal judge rejected defendant's contention and denied the motion to suppress. Defendant then withdrew his not guilty plea and entered a guilty plea, conditional upon his right to appeal the denial of the suppression motion. The municipal judge accepted the plea and sentenced defendant as a second offender, suspending his driving privileges for two years, imposing a $500 fine and $358 in costs and fees, and requiring him to attend forty-eight hours of alcohol counseling at the Intoxicated Driver Resource Center and perform thirty days of community service. Defendant appealed.

During the Law Division's trial de novo on the municipal court record, defendant again argued suppression was warranted as the checkpoint's legality was fatally flawed by the police's failure to log all vehicles. Also, he added the claim that Butler exceeded his authority as the greeting officer, whose sole function was to inform drivers of the checkpoint program, not to interact with or interrogate them, even those suspected of driving under the influence.

In a written opinion, Judge Marshall rejected defendant's arguments, finding Butler's interaction with defendant was proper and Butler's observations gave rise to probable cause for defendant's arrest. The court further found the log procedure was proper, concluding neither the Federal nor State Constitution required a log of every vehicle entering a checkpoint. Judge Marshall denied defendant's motion to suppress, convicted defendant of DWI and imposed the sentence originally ordered by the municipal court, which was stayed pending appeal. Defendant appeals the denial of his motion to suppress. See R. 3:5-7(d).

The function of the Law Division on an appeal from municipal court is to determine the case completely anew on the record made before the municipal court, giving due regard to the opportunity of the municipal court judge to evaluate the witnesses' credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make his or her own independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).

In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162; see also State v. Elders, 192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). When we are satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete" and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Johnson, supra, 42 N.J. at 162; see also Avena, supra, 281 N.J. Super. at 333.

Just as the Law Division does when conducting a de novo review, we "defer to [the] trial court['s] credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474. Indeed,

the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[Ibid.]

In his challenge to the constitutional sufficiency and validity of the checkpoint procedures employed, defendant relies upon our opinion in State v. Kirk, which presented an issue of first appellate impression in New Jersey. 202 N.J. Super. 28, 36 (App. Div. 1985). In Kirk, two police officers, solely at their own discretion, set up a DWI checkpoint on a rural road in Cape May County. Id. at 32-33. We described the checkpoint as follows:

This temporary road block was set up by the exercise of absolute, unbridled discretion of the officers in the field. There was no command or supervisory participation involved. There were no limits or directions of any kind on the "when, where and how" of this road block, and no hint as to any particular "why." There was no demonstration of need or efficacy at this particular time and place. We get the distinct impression that the purpose was little more than to give the officers something to do on the particular occasion.

[Id. at 37.]

Indeed, when asked, "What determines in your mind when you're going to set up a traffic check?" the testifying officer in Kirk replied that he and his patrol partner "[b]asically . . . just discuss it and we'll have one" and that the determinative factor was "mostly the weather." Id. at 33-34.

Following our survey of the law, we concluded "'a DWI road block is constitutional if properly conducted.'" Id. at 43 (quoting 3 LaFave, Search and Seizure, 10.8(g) at 190 (Supp. 1985)). However, we determined the checkpoint described in Kirk was unconstitutional because it was "set up by the officers in the field, solely at their discretion as to time, place and duration." Id. at 55. We stated:

Simply sending out officers to set up road blocks when and where they felt like it, without any command participation as to site, time and duration, and not based on articulated and rational law enforcement needs which justified the balance in favor of intrusion and outweighed the privacy right of the citizen to travel unimpeded, is a technique which has not survived constitutional scrutiny very well.

[Id. at 41.]

In reaching our conclusion, we surveyed federal and sister state authorities that had examined the issue. We discerned consonant procedural requisites that draw a warrantless checkpoint within constitutional compliance. Specifically, road blocks "established by a command or supervisory authority[,]" which were "carefully targeted to a designated area at a specified time and place based on data justifying the site selection for reasons of public safety and reasonably efficacious or productive law enforcement goals," would "likely pass constitutional muster." Id. at 40-41. Other factors found to "enhance judicial approval" included: "(1) adequate warnings to avoid frightening the traveling public, (2) advance general publicity designed to deter drunken drivers from getting in cars in the first place, and (3) officially specified neutral and courteous procedures for the intercepting officers to follow when stopping drivers." Id. at 41.

Recognizing a DWI checkpoint constitutes a warrantless search for which the State bears the burden of proving reasonableness, see State v. Valencia, 93 N.J. 126, 133 (1983), we will uphold a checkpoint as constitutional if it complies with discrete methods of investigation and apprehension "justify[ing] the State's intrusion on the traveling public" as articulated in Kirk, supra, 202 N.J. Super. at 55. See also State v. Dickey, 152 N.J. 468, 475 (1998) (stating the temporary detention of individuals during an automobile stop by police, "'even if only for a brief period and for a limited purpose,'" constitutes a seizure) (quoting Whren v. U.S., 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 153 L. Ed. 2d 89, 95 (1996)).

"In order to pass muster under our state constitution, a roadblock or checkpoint must be established for a specific need and to achieve a particular purpose at a specific place." State v. Carty, 170 N.J. 632, 652 (2002) (citing Kirk supra, 202 N.J. Super. at 37). In general, roadblocks may be justified "based on reasons of public safety and reasonably efficacious or productive law enforcement goals." State v. Mazurek, 237 N.J. Super. 231, 235 (App. Div. 1989) (internal quotations omitted), certif. denied, 121 N.J. 623 (1990). "The balance to be struck is whether 'the checkpoint advance[s] the public interest to a much greater degree than could be achieved through traditional less intrusive police procedures.'" Carty, supra, 170 N.J. at 653 (quoting Mazurek, supra, 237 N.J. Super. at 239).

We now examine defendant's constitutional challenge. Defendant focuses on the efficacy of the checkpoint procedures, suggesting police must record in the master log every car traveling through the checkpoint area to achieve neutrality. We reject this assertion.

Initially, we note the roadblock was set up under the auspices of command authority and that proper notice was given to the general public in compliance with Kirk, supra, 202 N.J. Super. at 57. The checkpoint was approved by the County Prosecutor who examined the written request submitted by the MTPD, adequately published information regarding the check point ahead of time, and used motorist warnings to alert the public. The checkpoint was held at a discrete time and place and designed to limit intrusions solely to motorists who violated the law. Ibid. At all times, Grady, an experienced and trained officer, was present and supervised the fifteen participating officers.

We disagree with defendant's interpretation that the checkpoint deviated from the dictates of paragraph thirteen of SOP #40 and Grady's September 7, 2007 memorandum. Under the procedure defined in SOP #40, traffic must not be stopped at random; instead, only those vehicles exhibiting plain view violations or the predetermined numbered vehicles are permissibly detained. The officers operating the checkpoint did not have unfettered discretion and were bound to abide the procedures set forth in SOP #40 and Grady's memo. Overall, the procedure demonstrates appropriate control of the discretion of officers operating the roadblock in order to achieve the defined public benefit, thus, mitigating the risk of arbitrary action.

The log sheet used contained a column requiring a notation of whether a vehicle was diverted because of an obvious traffic violation or because it fell in the predetermined numbered sequence. Accordingly, only those vehicles diverted to the second checkpoint area needed to be recorded in the log sheet. Kirk, supra, makes no mention that constitutional validity is dependent upon a record of every vehicle entering the checkpoint. One "key to constitutionality" of a DWI checkpoint is the "neutrality of its nature." State v. Reynolds, 319 N.J. Super. 426, 432 (App. Div. 1998). The procedure used here was just that. Nothing suggests neutrality can be achieved only by logging every vehicle traveling through the checkpoint.

Moreover, defendant's contention that "[b]y not recording every car that was stopped, there is no way for the reviewing court to actually analyze the actions of the police to determine if the procedures were complied with," is specious. The total number of vehicles passing through the checkpoint was recorded. Grady testified 306 vehicles traversed the checkpoint -- 125 in the northbound lanes and 181 traveling southward -- of which ninety-seven were detained and proceeded to the second checkpoint.

Finally, defendant's insinuation that the stops were targeted is unsupported. He offers no evidence that Butler disregarded the designated procedure to capriciously or purposely target him to be detained. Judge Marshall's review of the evidence thoroughly addressed this issue. We concur with his determination that the checkpoint operations were consistent with the principles articulated in Mazurek, supra, 237 N.J. Super. at 236 and Kirk, supra, 202 N.J. Super. at 40-41.

Following our review of the record, we conclude the checkpoint as operated was fully compliant with SOP #40 and passes constitutional muster. The checkpoint, as planned and implemented, included the necessary precautions to balance governmental intrusion upon private interests against the needs of public safety. State v. Thomas, 372 N.J. Super. 1, 3 (App. Div. 2004).

We also reject defendant's final argument that Butler as the greeting officer "exceeded his authority" by asking defendant where he was coming from and subsequently directing him toward the second checkpoint after detecting the odor of alcohol. The record supports Butler's "reasonable and particularized suspicion" that defendant was intoxicated when he entered the checkpoint. Carty, supra, 170 N.J. at 653; see also Reynolds, supra, 319 N.J. Super. at 434 (finding officer at roadblock had both "articulable suspicion of intoxication" and probable cause that justified sending defendant to secondary area for further sobriety analysis); Cf. State v. Williams, 192 N.J. 1, 9 (2007) (stating an investigatory stop is valid when based on "'specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity'") (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). SOP #40 required diversion of any driver reasonably suspected of driving while intoxicated. Clearly, Butler's observations that defendant exhibited tell-tale signs of intoxication created sufficient suspicion to divert defendant to the second check point area. See Reynolds, supra, 319 N.J. Super. at 434. We conclude defendant's motion to suppress was properly denied.

Affirmed.

 

There is no dispute that this is defendant's second DWI conviction.

An earlier trial court opinion had upheld a municipal sobriety check point after balancing the State's interest in promotion highway safety against an individual's expectation of privacy. State v. Coccomo, 117 N.J. Super. 575, 582 (Law Div. 1980)

Footnote continued on next page.

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A-3512-08T4

July 1, 2010