STATE OF NEW JERSEY v. MICHAEL GULKIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MICHAEL GULKIS,

Defendant-Respondent.

___________________________

June 6, 2014

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 05-05-2013.

Robert L. Taylor, Cape May County Prosecutor, attorney for appellant (J. Vincent Molitor and Gretchen A. Pickering, Assistant Prosecutors, of counsel and on the briefs).

Hornstine & Pelloni, LLC, attorneys for respondent (Brian A. Pelloni, of counsel and on the brief).

PER CURIAM

By leave granted, plaintiff State of New Jersey appeals from the September 20, 2013 Law Division order, which granted the motion of defendant Michael Gulkis to suppress evidence obtained as the result of an illegal stop of defendant's vehicle. We affirm.

We derive the following facts from the hearing on defendant's motion to suppress. On August 24, 2012, the New Jersey State Police were conducting a "traffic safety checkpoint" on the southbound Exit 6 ramp of the Garden State Parkway. At approximately 6:34 p.m., Trooper Adam Tighe was assisting a trooper on a motor vehicle stop when his supervisor, Sergeant Hay, signaled him to come over to defendant's vehicle, which defendant was pulling over to the shoulder. Sergeant Hay was speaking to defendant at the driver's side of defendant's stopped vehicle when Trooper Tighe pulled up in his patrol vehicle. Trooper Tighe admitted that defendant was not free to leave when Sergeant Hay was speaking to defendant. Trooper Tighe then exited his patrol vehicle, approached defendant's vehicle, and saw that defendant was not wearing a seatbelt. The trooper also saw an open alcoholic beverage container on the floor of defendant's vehicle; however, this fact is not relevant to this appeal.

Following the administration of field sobriety tests, defendant was arrested and later administered the Alcotest. He was charged with driving while intoxicated, N.J.S.A. 39:4-50(a); recklessdriving, N.J.S.A.39:4-96; possessionof anopen, unsealed alcoholic beverage container, N.J.S.A. 39:4-51b; and failure to wear a seatbelt, N.J.S.A. 39:3-76.2f (the seatbelt law).

Defendant filed a motion to suppress. In opposition, the State argued the traffic safety checkpoint was not an unconstitutional police roadblock. Only Trooper Tighe testified at the motion hearing. In granting the motion, the municipal court judge determined that the checkpoint was unlawful because it was not operated in compliance with the protocol set forth in State v. Kirk, 202 N.J. Super. 28, 43 (App. Div. 1985).

On appeal to the Law Division, the State argued for the first time that Sergeant Hay and Trooper Tighe had a reasonable and articulable basis to stop defendant because they observed him violate the seatbelt law. The judge found that: Sergeant Hay made the stop; there was no evidence as to why Sergeant Hay stopped defendant; and Trooper Tighe's testimony was insufficient to establish a reasonable and articulable basis for the stop because he observed defendant after he had already been stopped. Accordingly, the judge concluded there was no reasonable and articulable basis for the stop.

In this appeal, the State does not dispute that the traffic safety checkpoint and stop were unlawful. Rather, the State argues for the first time that the independent source exception to the exclusionary rule applies. In its reply brief, the State argues for the first time that the inevitable discovery exception applies. Generally, we decline to consider an issue not presented to the trial court unless the matter involves the trial court's jurisdiction or is of public importance. State v. Robinson, 200 N.J. 1, 20 (2009). We also generally decline to consider an issue raised for the first in a reply brief that does not present a matter of great public interest. Goldsmith v. Camden Cnty. Surrogate's Office, 408 N.J. Super. 376, 387 (App. Div.), certif. denied, 200 N.J. 502 (2009). However, because we conclude the State's arguments lack merit, we will address them.

"The exclusionary rule generally bars the State from introducing into evidence the "fruits" of an unconstitutional search or seizure[.]" State v. Shaw, 213 N.J. 398, 412 (2012). Our Supreme Court has held that

The exclusionary rule is a judicially created remedy designed to safeguard the right of the people to be free from unreasonable searches and seizures. The rule has a two-fold purpose. One is to deter future unlawful police conduct by denying the prosecution the spoils of constitutional violations. In that regard, [t]he rule is calculated to prevent, not to repair. Its purpose is to deter - - to compel respect for the constitutional guaranty in the only effectively available way - - by removing the incentive to disregard it. The second purpose is to uphold judicial integrity by serving notice that our courts will not provide a forum for evidence procured by unconstitutional means. Simply put, the exclusionary rule removes the profit motive for those officials who would violate the Constitution.

Although the exclusionary rule may vindicate the Fourth Amendment rights of a particular defendant, and more generally the privacy rights of all persons, it may also depriv[e] the jury or judge of reliable evidence that may point the way to the truth. Because of the high price exacted by suppressing evidence, the exclusionary rule is applied to those circumstances where its remedial objectives can best be achieved. Thus, when law enforcement officials secure evidence that is sufficiently independent of the illegal conduct - - evidence that is not tainted by the misdeed - - then withholding evidence from the trier of fact is a cost that may not be justified by the exclusionary rule.

. . . . The exclusionary rule will not apply when the connection between the unconstitutional police action and the secured evidence becomes so attenuated as to dissipate the taint from the unlawful conduct.

[Id. at 412-14 (alterations in original) (citations and internal quotation marks omitted).]

Under the exclusionary rule, "the prosecution is not to be put in a better position than it would have been in if no illegality had transpired." Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2508, 81 L. Ed. 2d 377, 387 (1984). The exclusionary rule is not monolithic and inexorable, however. Case law has developed certain exceptions to the exclusionary rule, in recognition of the fact that if exclusion in a particular instance will not further purposes of the exclusionary rule, there is no reason for the courts to apply it. Id. at 443, 104 S. Ct. at 2508, 81 L. Ed. 2d at 387 (recognizing that the prosecution should not be in worse position "because of some earlier police error or misconduct").

In State v. Smith, 212 N.J. 365, 393-95 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013), our Supreme Court considered two exceptions to the exclusionary rule that bear a facial similarity but have different conceptual bases, the independent source and the inevitable discovery exceptions. Under the independent source exception, the State must prove by clear and convincing evidence that: (1) it had probable cause to conduct the search without the unlawfully obtained information, meaning the State cannot use improperly obtained information "to bootstrap the existence of probable cause" to justify the search or seizure; (2) it would have pursued the investigation without the tainted knowledge or evidence; and (3) the initial impermissible search was not the product of "'flagrant police misconduct.'" Id. at 394-95 (quoting State v. Holland, 176 N.J. 344, 360-61 (2003)). The State's "'failure to satisfy any one prong of the standard will result in suppression of the challenged evidence.'" Id. at 395 (quoting Holland, supra, 176 N.J. at 363).

The Court also reaffirmed the standard articulated in State v. Sugar (Sugar II), 100 N.J. 214 (1985) for the inevitable discovery exception. Id. at 391. The State must prove that

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[Ibid. (quoting Sugar II, supra, 100 N.J. at 238).]

Inaddition, theState mustdemonstrate theseelements by clear and convincing evidence. Ibid. (citingSugar II,supra, 100N.J. at240).

Here, the State argues that the independent source exception applies because Trooper Tighe had probable cause to stop defendant independent of the unlawful checkpoint and stop. The State also argues the inevitable discovery doctrine applies because Trooper Tighe's observations would have inevitably resulted in the discovery of the seatbelt violation independent of the unlawful checkpoint and stop. We disagree with these arguments.

The seatbelt law is "only . . . a secondary offense" enforceable if the driver "[had] been detained for some other suspected [motor vehicle] violation." N.J.S.A. 39:3-76.2n. In other words, neither Sergeant Hay nor Trooper Tighe could stop defendant merely because he violated the seatbelt law. Because there was no evidence that defendant was stopped for some other suspected motor vehicle violation, there was no probable cause for the stop. Assuming, arguendo, that Sergeant Hay had probable cause for the stop based on the seatbelt violation, Trooper Tighe, the only witness who testified, had no probable cause. Although he saw defendant driving without a seatbelt, this observation occurred after Sergeant Hay had stopped defendant.

Further, Trooper Tighe did not observe defendant violate the seatbelt law anywhere other than the illegal checkpoint, and he did not see defendant at all until after Sergeant Hay signaled him to come over to defendant's vehicle. There is no evidence that Trooper Tighe would have pursued an investigation into defendant's failure to wear a seatbelt wholly independent of the unlawful checkpoint and stop.

Affirmed.