STATE OF NEW JERSEY v. KRISTEN FATH

NOT FOR PUBLICATION WITHOUT THE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.

KRISTEN FATH,

Defendant-Appellant.

___________________________________________________

February 10, 2015

Argued January 21, 2015 Decided

Before Judges Messano, Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0055-13.

A. Harold Kokes argued the cause for appellant.

Marc J. Nehmad, Somers Point Municipal Prosecutor, argued the cause for respondent (Mr. Nehmad and Kelly T. McGriff, on the brief).

PER CURIAM

Defendant Kristen Fath appeals from the interlocutory order of the Law Division that, on de novo appeal from the municipal court, denied defendant's motion to suppress.1 We affirm.

Three motor vehicle summonses were issued to defendant on August 30, 2013, charging her with driving while intoxicated (DWI), N.J.S.A. 39:4-50, careless driving, N.J.S.A. 39:4-97, and failing to observe a traffic signal prohibiting a turn on red, N.J.S.A. 39:4-81 and -115. Defendant filed a motion to suppress evidence that was heard on stipulated facts in the Somers Point municipal court on October 22.2

The undisputed facts were that Somers Point police officer Burns3 was stopped at a traffic light at an intersection when he observed defendant's car, facing him on the opposite side of the intersection, turn in contravention of a posted sign prohibiting a right turn on red. Burns changed his intended route and followed defendant. He observed her carelessly cross oncoming traffic in order to make a left-hand turn.4 Burns activated his lights and stopped defendant, subsequently issuing defendant the three motor vehicle summonses referenced above. Defendant produced a certification from the New Jersey Department of Transportation (DOT) stating that a search of its records had "failed to [find] any . . . approval providing for the installation of a [t]raffic [s]ignal and lane markings" at the intersection.

Defendant's argument was straightforward before the municipal court judge and the Law Division judge. N.J.S.A. 39:4-81 requires every driver to "obey the instructions of any official traffic control device . . . placed in accordance with the provisions of this chapter . . . ." (Emphasis added). N.J.S.A. 39:4-115, in turn, permits a right-hand turn on red "unless an official sign of the State, municipality or county authority having jurisdiction over the intersection prohibits the same." (Emphasis added). Because the sign prohibiting a right turn on red was not approved, defendant did not violate the motor vehicle laws.5 See State v. Cooper, 129 N.J. Super. 229, 234 (App. Div.) ("Once the State has proved [] that a traffic control device does exist in a specific location, it is to be presumed official and properly placed there. The burden of going forward and adducing evidence to rebut the presumption then falls upon defendant."), certif. denied, 66 N.J. 329 (1974). Therefore, defendant argues Burns's stop was premised on a "mistake of law," rendering it unconstitutional, and any evidence that resulted from the stop must be suppressed.

The State countered by arguing that, even if defendant did not violate N.J.S.A. 39:4-115, the stop was based upon her subsequent careless driving, and therefore, the motion should be denied. The Law Division judge agreed with the State and denied defendant's motion, stating

I find compelling that the officer did not initiate the stop following that turn on red

. . . . He merely followed, much like [the municipal court judge] indicated that an officer had the ability or inability to travel wherever he wanted, wherever he so choose [sic].

[] Defendant's automobile drew the attention of the officer. Officer [Burns] followed the vehicle and then initiated the stop after he found or observed careless driving, which ultimately led to the DWI.6

Defendant reiterates her argument on appeal.

It is axiomatic that "[a]s a general rule, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." State v. Dickey, 152 N.J. 468, 475 (1998) (internal quotation marks and citations omitted). A "brief traffic stop is [also] constitutionally permissible under a less stringent standard." State v. Pitcher, 379 N.J. Super. 308, 314 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). "A 'police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" Ibid. (quoting State v. Locurto, 157 N.J. 463, 470 (1999)).

We fully agree that Burns's motor vehicle stop was supported by the subsequent observations he made of defendant's careless driving. Defendant's argument that the officer's attention was first drawn to her because she proceeded through the no-right-on-red sign is of no moment. Burns did not stop defendant's car immediately after it made a turn at the intersection; he stopped the car triggering defendant's constitutional right to be free from an unreasonable search and seizure only after he observed her driving carelessly. The argument lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We therefore affirm the order denying defendant's motion to suppress.

For the sake of completeness, we address defendant's argument that Burns's stop was premised upon a mistake of law, i.e., that defendant had violated N.J.S.A. 39:4-81, and therefore was objectively unreasonable and unconstitutional. In this regard, she relies exclusively on our decision in State v. Puzio, 379 N.J. Super. 378 (2005).

In Puzio, the police officer observed a sports car that lacked any signage identifying the owner of the vehicle, even though the car bore a commercial license plate. Id. at 380. Believing this violated N.J.S.A. 39:4-46(a)7, the officer stopped the vehicle, ultimately leading to the defendant's arrest for DWI. Ibid. We noted

Although our courts have never addressed this precise issue, other jurisdictions have concluded that where an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop.

[Id. at 383 (emphasis added).]

We held that because the officer "had no objectively reasonable basis to support his conclusion that [the] defendant's car was being operated in violation of N.J.S.A. 39:4-46a[,] . . . his stop of the vehicle was unlawful and [the] defendant's motion to suppress should have been granted." Id. at 384.

In this case, however, Burns did not miscomprehend N.J.S.A. 39:4-81 when he saw defendant turn on red and later issued her a summons. The statute clearly prohibits a right turn on red when a sign is posted, as it was here. Instead, Burns fell victim to an objectively reasonable mistake of fact, namely that the sign was an "official sign" duly approved by the governing public entity.

The situation, therefore, is more akin to that which we considered in Pitcher. In that case, the defendant's license was erroneously listed as suspended in the Division of Motor Vehicles database. Pitcher, supra, 379 N.J. Super. at 312. A police officer "ran" the plate on the defendant's car, followed it for a distance, and after making "observations[] not set forth [i]n the record," pulled the defendant over for DWI. Id. at 312-13.

In rejecting the argument that the officer's actions were tainted by the errors in the database, we noted that "[i]nformation acquired subsequently cannot be used to either bolster or defeat the facts known [to the officer] at the time" of the motor vehicle stop. Id. at 315-16 (citing Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971)). "[W]here an officer relies on information provided by others the question is the reasonableness of the officer's reliance on that information under the totality of the circumstances." Id. at 319.

Here, as in Pitcher, Burns acted upon his objectively reasonable belief that the sign prohibiting a right turn on red was "an official sign." We reject defendant's argument in this regard.

Lastly, certainly as to rights secured by the Fourth Amendment to the United States Constitution, Puzio's continued vitality must be questioned in light of the Supreme Court's recent decision in Heien v. North Carolina, 574 U.S. ___, ___ S. Ct. ___, ___ L. Ed.2d ___ (2014). In Heien, while following a vehicle whose driver looked "very stiff and nervous," id. slip op. at 2, a police officer noticed that only one of the vehicle's brake lights was functioning, which he believed was a violation of North Carolina's motor vehicle statutes. Id. at 3. After stopping the car and obtaining the defendant's consent to search, the officer found a bag of cocaine leading to the defendant's arrest. Id. at 2-3. The North Carolina Court of Appeals held that the officer's mistaken understanding of the motor vehicle laws invalidated the initial stop and subsequent seizure because it was "objectively unreasonable" to stop a law-abiding vehicle. Id. at 3.

The Supreme Court, however, reversed. After noting that reasonable mistakes of fact cannot defeat an officer's objectively reasonable suspicion that the law is being violated, Chief Justice Roberts concluded that mistakes of law "are no less compatible with the concept of reasonable suspicion." Id. at 6.

Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonably mistake of law.

[Ibid.]

For all the above reasons, we affirm. Any stay granted by the Law Division is vacated, and defendant shall appear in the Somers Point municipal court within ten days of this decision for further proceedings on the motor vehicle summonses.

1 Defendant improperly filed this appeal from an interlocutory order without seeking leave. See R. 2:2-3(a)(1) (providing for appeal as of right only as to final orders). Defendant clearly indicated on her notice of appeal that the order under review was not a final order. However, the Clerk's Office failed to take note. Because of the time that has now elapsed, we treat defendant's notice of appeal as a motion seeking leave to appeal as within time, and decide the merits of her appeal. See R. 2:4-4(b); see also Najduch v. Twp. of Independence Planning Bd., 411 N.J. Super. 268, 273 (App. Div. 2009) (granting leave to appeal as within time from an interlocutory order in "the 'interest of justice'").

2 No stipulation of facts was actually placed on the record in either the municipal court or the Law Division, nor does one appear in the appellate record. However, we have pieced together what are the undisputed facts from the colloquy of counsel before both the municipal court judge and the Law Division judge, and the findings made by both judges.

3 His first name does not appear in the record.

4 Defendant apparently contested Burns's claim that she crossed the middle line into oncoming traffic, but did not dispute that Burns had probable cause to stop her for driving carelessly.

5 The State apparently does not contest that the sign at the intersection was not an "official sign," "placed in accordance" with the provisions of the Motor Vehicle Laws.

6 Regarding an order entered after de novo appeal to the Law Division, our review is limited to "the action of the Law Division [judge,] not that of the municipal court" judge. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001).

7 N.J.S.A. 39:4-46(a) provides in pertinent part: "Every vehicle used for commercial purposes . . . , except for passenger automobiles . . . , shall have conspicuously displayed thereon,

. . . the name of the owner, lessee or lessor of the vehicle and the name of the municipality in which the owner, lessee or lessor has his principal place of business."