STATE OF NEW JERSEY v. KYLE M. HANCOCK

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

KYLE M. HANCOCK,

Defendant-Appellant.

__________________________________

August 1, 2014

Submitted April 28, 2014 Decided

Before Judges Leone and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 5045.

Kenneth Del Vecchio, attorney for appellant (Mr. Del Vecchio, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief; Kirah Addes, Agent Attorney, on the brief).

PER CURIAM

Defendant Kyle M. Hancock, convicted of driving while intoxicated (DWI), appeals the denial of his motion to suppress. We find the stop of his vehicle was justified by the community caretaking doctrine, and affirm.

I.

We briefly summarize the evidence at the suppression hearing. At 2:30 a.m. on June 22, 2012, Sergeant Calabro, a seventeen-year veteran in the Wanaque Police Department, approached an intersection at which a Ford pickup truck was stopped at a red light. Calabro saw the traffic light turn from red to green, but the truck did not move. For twenty-three seconds after the light turned green, the truck remained stationary, even though it was in the only lane for northbound travel and Calabro's marked police car was approaching from behind heading northbound. After reaching the truck and waiting a "couple" more seconds, Calabro activated his overhead emergency lights. Only then did the truck's driver, defendant, begin to drive, putting on his right turn signal and making a right turn.

Calabro, thinking defendant might be having a medical emergency or that there might be something wrong with the truck, initiated a motor vehicle stop. When he approached the truck, he asked defendant if he was ok. Defendant replied that he was. When asked why he was "parked at the light," defendant said he wanted to eat his french fries. Defendant does not dispute that the stop thereafter was conducted properly and showed that he was intoxicated.

Defendant was cited for DWI, N.J.S.A. 39:4-50, and blocking traffic by driving at slow speeds, N.J.S.A. 39:4-97.1. After hearing Calabro's testimony and watching the police car video leading up to the stop, the Municipal Court denied defendant's motion to suppress.

Pursuant to a plea agreement preserving his right to appeal the suppression ruling, defendant pled guilty to the DWI offense, the blocking traffic offense was dismissed, and he was sentenced to forty-eight hours at an intoxicated drivers' resource center, thirty days of community service, a two-year license suspension, use of an interlock device for one year, and $864 in fines and penalties. On appeal, the Law Division reviewed the record, viewed the video, heard argument, and affirmed the denial of the motion to suppress. The Law Division stayed the non-monetary penalties pending appeal.

II.

Defendant appeals, raising the following argument:

REMAINING STOPPED AT A GREEN LIGHT FOR A MERE 23 SECONDS DOES NOT CONSTITUTE REASONABLE AND ARTICULABLE SUSPICION, NOR JUSTIFY STOPPING THE DEFENDANT UNDER THE COMMUNITY CARETAKER DOCTRINE.

We must hew to our "exceedingly narrow" standard of review in non-jury cases. State v. Locurto, 157 N.J. 463, 470 (1999). "[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). We owe particular "deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Stas, 212 N.J. 37, 49 (2012) (quotation marks omitted). The need for deference is even "'more compelling'" when the Municipal Court and the Law Division have agreed on a factual finding. Id. at 49 n.2. "Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

III.

Both the Municipal Court and the Law Division found that defendant's truck remained motionless after the light turned green for twenty-three seconds. Both courts agreed that Calabro's resulting stop of the truck was a proper exercise of his community caretaking function. We agree.

The Fourth Amendment to the United States Constitution, and the New Jersey Constitution, protect against "unreasonable searches and seizures," and generally require a warrant issued upon probable cause. U.S. Const. amend. IV; N.J. Const. art. I, 7. However, the United States Supreme Court has long recognized the special nature of police-citizen contact stemming from "the extensive regulation of motor vehicles and traffic," and "the frequency with which a vehicle can become disabled or involved in an accident on public highways." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 714 (1973). "Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature." Ibid.

"Local police officers . . . frequently investigate vehicle accidents 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." Id. at 441, 93 S. Ct. at 2523, 37 L. Ed. 2d at 714-15. Similarly, "[t]o permit the uninterrupted flow of traffic," disabled vehicles "will often be removed from the highways or streets at the behest of police engaged solely in [community] caretaking and traffic-control activities." South Dakota v. Opperman, 428 U.S. 364, 368, 96 S. Ct. 3092, 3097, 49 L. Ed. 2d 1000, 1005 (1976).

The United States Supreme Court has held that automobile searches conducted as part of these "community caretaking functions" are not governed by the warrant requirement, or by "[t]he standard of probable cause [which] is peculiarly related to criminal investigations, not routine, non-criminal procedures." Id. at 369-70 & n.5, 96 S. Ct. at 3097-98, 49 L. Ed. 2d at 1005-06; accord Colorado v. Bertine, 479 U.S. 367, 371-72, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739, 745-46 (1987). Instead, community caretaking searches must meet only the Fourth Amendment's "general standard of 'unreasonableness.'" Cady, supra, 413 U.S. at 448, 93 S. Ct. at 2531, 37 L. Ed. 2d at 718.

Our Supreme Court has similarly recognized that "police officers acting in a community-caretaking capacity 'provide "a wide range of social services" outside of their traditional law enforcement and criminal investigatory roles.'" State v. Vargas, 213 N.J. 301, 323 (2013) (quoting State v. Edmonds, 211 N.J. 117, 141 (2012)) (quoting State v. Bogan, 200 N.J. 61, 73 (2009)). Thus, our Court has adopted the community caretaking doctrine as an exception to the warrant and probable cause requirements. State v. Harris, 211 N.J. 566, 581 (2012). Although our Court has narrowed its applicability regarding searches of homes, Vargas, supra, 213 N.J. at 305; Edmonds, supra, 211 N.J. at 143, the Court has applied the community caretaking doctrine to automobile searches. E.g., State v. Diloreto, 180 N.J. 264, 277, 280-81 (2004); State v. Mangold, 82 N.J. 575, 585 (1980).

The community caretaking doctrine does not require "'that the police demonstrate probable cause or an articulable suspicion to believe that evidence of a crime will be found.'" Diloreto, supra, 180 N.J. at 276 (quoting Kevin G. Byrnes, New Jersey Arrest, Search and Seizure 14:1-1 at 289 (2003)). Instead, "[w]hen courts review those forms of citizen-police encounters they 'employ a standard of reasonableness to determine the lawfulness of police conduct.'" Ibid.

"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); see State v. Adubato, 420 N.J. Super. 167, 179, 181-82 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012); State v. Matthews, 398 N.J. Super. 551, 558 (App. Div.), certif. denied, 196 N.J. 344 (2008), cert. denied, 555 U.S. 1159, 129 S. Ct. 1037, 173 L. Ed. 2d 480 (2009); State v. Cohen, 347 N.J. Super. 375, 378 (App. Div. 2002).

Several cases have held that such "abnormal operation of a motor vehicle establishes a reasonably objective basis to justify a motor vehicle stop." State v. Washington, 296 N.J. Super. 569, 572 (App. Div. 1997). In Washington, the defendant's automobile was "weaving within his lane of travel" and traveling at a slow speed on a state highway at 12:20 a.m. Id. at 571. 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. In State v. Goetaski, 209 N.J. Super. 362, 365 (App. Div.), certif. denied, 104 N.J. 458 (1986), the defendant was driving slowly on the right shoulder of a rural state highway with his left-turn indicator flashing at about 4 a.m.

Here, at 2:30 a.m., defendant's truck did not move for twenty-three seconds after the light turned green, even though he was in the only lane for forward travel and another vehicle was approaching him from behind. "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; [or] (c) a traffic safety hazard is presented to drivers approaching from the rear" at night. See Martinez, supra, 260 N.J. Super. at 78. Calabro had an objectively reasonable basis to be concerned that the driver was sleepy at that late hour; overly distracted from his driving duties, as defendant later admitted; or otherwise impaired, as the stop confirmed. "If on-duty police officers are to fulfill their responsibility to promote safety for the traveling public, intervention is mandated in such circumstances." Washington, supra, 296 N.J. Super. at 572.1

Defendant argues that the stop was unreasonable, citing State v. Cryan, 320 N.J. Super. 325 (App. Div. 1999). There, we acknowledged that in Goetaski, Martinez, and Washington, "the abnormal operation of the vehicle indicated that the driver might be in some difficulty, thereby presenting a hazard to himself or others." Id. at 328-31. However, we found that "[i]nferences of that sort cannot be reasonably drawn from a driver's failure to proceed for five seconds after a red light has turned green when the only other vehicle in the area is a marked police car stopped immediately to the driver's rear." Id. at 331. Further, in Cryan, the officer testified that he stopped Cryan's vehicle not out of community caretaking concern, about Cryan, but "because he was under orders to stop every moving vehicle [in the borough] during his shift" due to concerns about burglaries. Id. at 327, 331

While seconds can reflect a mere momentary distraction, or over-cautious behavior with a police car at the driver's rear, defendant here was stationary at the green light for at least twenty-three seconds, more than four times longer than Cryan. Moreover, unlike Cryan who turned before the officer activated his emergency lights, id. at 326, defendant did not move until after Calabro activated his emergency lights, indicating a deeper and potentially longer period of inattentiveness. There is no evidence defendant had seen the police car approaching, and was being over-cautious.

Even after Calabro activated his emergency lights and defendant's truck finally moved, Calabro still had reason to believe defendant was sleepy, excessively inattentive, or otherwise impaired.2 Further, unlike the officer in Cryan, Calabro testified that he stopped defendant's truck because he thought there was something wrong with the driver or the vehicle, the concern at the heart of these community caretaking cases. Indeed, defendant does not claim Calabro's stated reasons were in bad faith.

"[W]e will not substitute our judicial hindsight for what appears to us as a sound, nonpretextual exercise of curbstone judgment by the officer." Goetaski, supra, 209 N.J. Super. at 366. "What is reasonably objective is measured by the dynamics or totality of the circumstances from the perspective of the officer on duty at the time and not from the esoteric perspective of the courtroom." Washington, supra, 296 N.J. Super. at 572. Balancing "the applicable concerns . . . against the minimal intrusion involved in a simple inquiry stop[, w]e are satisfied on this balance that the stop was objectively reasonable and fell far short of the line of unconstitutionality we drew in Goetaski." Martinez, supra, 260 N.J. Super. at 78.

Accordingly, we find that the stop was justified under the community caretaking doctrine. Thus, we need not determine whether Calabro had reasonable suspicion that defendant was "driv[ing] a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic" in violation of N.J.S.A. 39:4-97.1, as the Law Division additionally found.

1 Cf. State v. Witt, 435 N.J. Super. 608, 616 n.8 (App. Div. 2014) (driving on a largely deserted highway in an unpopulated area with high beams on is not abnormal); State v. Seymour, 289 N.J. Super. 80, 88 (App. Div. 1996) (driving a vehicle in the right lane at forty miles per hour on an interstate highway at 10:30 p.m. is not unusual).

2 Because we reach the same result whether or not we consider defendant's movement, we do not address whether defendant was seized when Calabro activated his emergency lights, or when Calabro pulled over the truck. See Adubato, supra, 420 N.J. Super. at 180.