STATE OF NEW JERSEY v. RAYMOND WHITLOCK, JR

NOT FOR PUBLICATION WITHOUT THE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.

RAYMOND WHITLOCK, JR.,

Defendant-Respondent.

_________________________________

October 16, 2014

Submitted August 26, 2014 Decided

Before Judges Hayden and Leone.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-093.

Frederic M. Knapp, Morris County Prosecutor, attorney for appellant (Paula Jordao, Assistant Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Joe B. Truland, Designated Counsel, on the brief).

PER CURIAM

The State appeals from an order of the Law Division suppressing the evidence obtained during a motor vehicle stop of defendant Raymond Whitlock, Jr. The State argues the stop was supported by reasonable suspicion of crime. We affirm.

I.

Detective David Turner had been employed by Mount Olive Township as a police officer for fourteen years and with the Detective Bureau for two-and-a-half years. On Saturday, September 15, 2012, he was conducting a patrol for drunk drivers on Route 206. The traffic was "light to non-existent." At approximately 1:08 a.m., he observed a Ford sedan exiting from "a small access road [that] leads to about four or five residential looking houses that are businesses." The access road branches off Route 206, parallels it for about 500 feet, rejoins it, and is accessible only from Route 206. The businesses on the access road a massage parlor, a tattoo parlor, and a couple of "doctors type businesses" were not normally open after midnight, had no lights showing, and appeared to be closed.

The Ford pulled onto Route 206. The detective followed it for two blocks as it turned into Oakwood Village. He alerted dispatch and conducted a stop of the Ford. As a result, he determined that the driver, defendant, lived at Oakwood Village and was intoxicated. He arrested defendant for driving while intoxicated.

Defendant filed a motion to suppress in Municipal Court. The detective testified that he stopped the Ford to "determine what the driver was doing" as part of his community caretaking function. The detective was concerned that the vehicle was in proximity of closed businesses because it was "not normal. [I]n the years I've worked here, I see [sic] vehicles coming out at that time of night. [G]iven the closed businesses . . . the vehicle . . . did not have a legitimate reason that I could foresee to be there."

The detective testified that there had been several "commercial burglaries in our town and in the county over the past several months." The detective added that he "pulled the figures" showing that in the last ninety days there had been three commercial burglaries in Mount Olive, two in close proximity to the location. On cross-examination, the detective conceded that there had been no business alarms or any specific incident that drew him to the location.

The Municipal Court credited the detective, and denied the motion to suppress. The court upheld the stop under the community caretaking doctrine, finding the officer had an objectively reasonable basis to be concerned about criminal activity. The court noted that as all the businesses were closed, defendant had no reason to be on the access road "except potentially to have made a wrong turn off of 206."

Defendant entered a conditional guilty plea to driving while intoxicated, N.J.S.A. 39:4-50, preserving his right to appeal the denial of his suppression motion. He was sentenced to two days in an intoxicated driver resource center, a ten-year license suspension, use of an interlock device, and various monetary penalties. The Municipal Court stayed the sentence pending appeal.

Defendant appealed de novo to the Law Division, which reviewed the transcript and accepted the Municipal Court's credibility determination. The State abandoned the community caretaking doctrine argument, and instead argued the detective had a reasonable articulable suspicion of criminal activity. After hearing argument, Judge Mary Gibbons Whipple ruled that the community caretaking doctrine did not apply because the detective never articulated a concern for defendant's well-being. Instead, he stopped the Ford to investigate criminal activity. The court also found that the facts did not rise to reasonable suspicion. The court granted the motion to suppress by order and written opinion dated December 16, 2013. We granted the State's motion for leave to appeal.

II.

We must hew to our "exceedingly narrow" standard for reviewing a suppression ruling by the Law Division on de novo appeal from the Municipal Court. State v. Locurto, 157 N.J. 463, 470 (1999); see State v. Johnson, 42 N.J. 146, 161-62 (1964). "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007).

An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction."

[Id. at 244 (quoting Johnson, supra, 42 N.J. at 162).]

Finally, "we 'consider only the action of the Law Division and not that of the municipal court.'" State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012).

A.

As it did in the Law Division, the State abandons the community caretaking argument. Nonetheless, we note our agreement with the Law Division that the community caretaking doctrine does not apply.

That doctrine recognizes that police officers often encounter vehicle accidents, disabled vehicles, and similar trouble on the roadways "in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 714-15 (1973). "A police officer's observation of a person operating a motor vehicle in a manner that indicates something may be wrong with the vehicle or its driver is one recognized circumstance in which the police may take appropriate action in the performance of their community caretaking responsibilities." State v. Garbin, 325 N.J. Super. 521, 526 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000).

In State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992), the defendant was driving "on a residential street at a snail's pace between five and ten m.p.h." shortly after 2 a.m. We noted

Such abnormal conduct suggests a number of objectively reasonable concerns: (a) something might be wrong with the car; (b) something might be wrong with its driver; (c) a traffic safety hazard is presented to drivers approaching from the rear when an abnormally slow moving vehicle is operated at night on a roadway without flashers; (d) there is some risk that the residential neighborhood is being "cased" for targets of opportunity. Possibilities (a), (b) and (c) involve the "community caretaking function" expected of alert police officers. Possibility (d) implicates the "common-law right to inquire" based upon a founded suspicion that criminal activity might be afoot.

[Ibid.]

We "consider[ed] all of these applicable concerns," "balance[d] them against the minimal intrusion involved in a simple inquiry stop," and found "that the stop was objectively reasonable." Ibid.

Unlike Martinez, here the detective did not actually advance any community caretaking concerns. He observed nothing in the operation of the vehicle suggesting there was anything wrong with the Ford or its driver, and he did not contend the Ford violated any motor vehicle laws or posed a traffic hazard. Thus, the community caretaking doctrine did not justify stopping this moving vehicle. Cf. State v. Drummond, 305 N.J. Super. 84, 87 (App. Div. 1997) (upholding a "community caretaking inquiry" of a parked vehicle because it was not a stop).

B.

The State now relies solely on the argument that the detective had reasonable suspicion of criminal activity justifying an investigative stop.

"Both the United States and the New Jersey Constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 7. It is well established that the investigative stop of an automobile by police constitutes a seizure that implicates those constitutional protections." State v. Amelio, 197 N.J. 207, 211 (2008) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979)). "'A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense . . . has been or is being committed.'" Ibid.

"[T]he '[r]easonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest.'" Ibid. Nonetheless, "[n]either inarticulate hunches nor an arresting officer's subjective good faith can justify an infringement of a citizen's constitutionally guaranteed rights. Rather, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Id. at 212 (citation and quotation marks omitted). A reviewing court must consider "[t]he totality of the circumstances" and the "officer's experience and knowledge." State v. Pineiro, 181 N.J. 13, 22 (2004).

Here, the detective inferred, from the Ford's late-night use of an access road containing only closed businesses, that its occupant(s) might be involved in a burglary. As the Municipal Court noted, there were other possible explanations. The driver could have made a wrong turn, mistakenly believed one of the businesses was open, or used the access road for another lawful purpose, such as to use his phone. However, "'simply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt.'" State v. Mann, 203 N.J. 328, 338-339 (2010).

The detective also cited prior occurrence of burglaries in the township and the county to support reasonable suspicion. "[R]ecent nearby crimes" can be a factor in finding reasonable suspicion. State v. Contreras, 326 N.J. Super. 528, 541 (App. Div. 1999); see State v. Citarella, 154 N.J. 272, 280 (1998) (citing "a rash of [recent] burglaries in the area" as one of several reasons to stop a bicyclist).

However, "[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime." Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 145 L. Ed. 2d 570, 576 (2000). That a location is "a high-crime area does not mean that residents in that area have lesser constitutional protection from random stops." State v. Shaw, 213 N.J. 398, 420 (2012). Similarly, a stop is not justified simply because a burglary happened a day earlier in the area, State v. Kuhn, 213 N.J. Super. 275, 281 (App. Div. 1986), or down the street a week or two earlier, State v. Stampone, 341 N.J. Super. 247, 249, 252 (App. Div. 2001). "Mere presence in a high crime or narcotics area does not give the police reasonable grounds for an investigatory stop and frisk where the conduct of the suspect itself adds nothing to justify police intrusion." In re State in Interest of D.S., 125 N.J. Super. 278, 286 (App. Div.) (Botter, J., dissenting), rev d on dissent, 63 N.J. 541, 542 (1973).

Here, the only conduct the detective observed was the defendant driving from an access road late at night when the businesses on that road were closed. However, this was a public road adjacent to, and easily accessible from, a highway, not a private road or driveway leading to a shuttered business. While there had been three burglaries in the township in a ninety day period, two of which were nearby, there is no indication the burglaries occurred on the access road or were recent. There was nothing otherwise suspicious about defendant's activities. To find reasonable suspicion here would authorize the stopping of any vehicle on the access road at this time of night.

We recognize the need to consider the training and experience of the detective, and we do not doubt his good faith. See State v. Davis, 104 N.J. 490, 501 (1986). However, it is notable that the detective did not state that he had reasonable suspicion. Instead, he stated that he stopped the vehicle "as a community caretaking function."

We agree with the Law Division judge that, considering the totality of the circumstances, these facts do not amount to a reasonable and articulable suspicion. As the Supreme Court stated in Elders, supra, 192 N.J. at 250-51, "[t]he motion judge's findings concerning . . . whether the [police] possessed the necessary suspicion were close calls. We cannot conclude, however, based on our review of the record, that those findings are so clearly mistaken that an appellate court should substitute its own judgment."

Affirmed.