STATE OF NEW JERSEY v. V.A.-M.

NOT FOR PUBLICATION WITHOUT THE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.

V.A.-M.,

Defendant-Appellant.

________________________________________________

Argued telephonically November 12, 2015 Decided December 11, 2015

Before Judges Guadagno and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 3-14-A.

Drew M. Hurley argued the cause for appellant.

Rory A. Eaton, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Eaton, of counsel and on the brief).

PER CURIAM

After his motion to suppress was denied in municipal court, eighteen-year-old defendant, V.A.-M. pled guilty to loitering to obtain a controlled dangerous substance, N.J.S.A. 2C:33-2.1, and was sentenced to a fine of $350, plus court costs and fees. Defendant appealed and, after de novo review, the Law Division affirmed the municipal court's denial of defendant's motion to suppress and imposed the sentence.

Defendant now challenges the stop of a motor vehicle in which he was a passenger, and the subsequent warrantless search and seizure of a pipe from his pants pocket that was alleged to be drug paraphernalia. Because the police stop cannot be justified either as an investigatory stop or under the community-caretaking doctrine, we reverse.

We glean the following facts from the record. Just after 9:00 p.m. on February 26, 2011, the Bedminster Police Department received an anonymous call reporting that one or two "suspicious" white males in a gray compact vehicle "were seen running to and from a vehicle or . . . a residence" at the Upper Hills section of Encampment Drive, located near the border of Bedminster and Bernards Townships. The caller did not report any criminal activity, but noted that one of the males ran up and down a hill, more than one time. The caller also provided the license plate number of the vehicle.

Officer John A. Dapkins of the Bedminster Township Police Department responded to Encampment Drive, but did not see the vehicle or the parties. Using the license plate number provided by the caller, Officer Dapkins used his mobile data terminal (MDT) to check the address of the registered owner of the vehicle. The MDT revealed an address in Basking Ridge, located in Bernards Township, a few streets from Officer Dapkins's location.

After contacting the Bernards Township Police Department (BTPD), Officer Dapkins drove to the address and parked his marked police car in the driveway. BTPD Sergeant Eric Geleta also responded and parked his marked vehicle on the street in front of the home.

Sergeant Geleta went to the front door, but it appeared that no one was home. Officer Dapkins joined Geleta on the front steps, when he noticed a gray car matching the description provided by dispatch approach the residence. Dapkins pointed to the vehicle and told Geleta, "That's our vehicle." The vehicle stopped in front of the house, and began to move again. Dapkins then "yelled, or made some type of gesture for them to stop." The driver stopped and the officers approached the vehicle. Officer Dapkins testified that, if the vehicle had not stopped, he would have pulled the vehicle over "because of [the] suspicious call," and that, once he stopped the vehicle, it was not free to go because he was "investigating a suspicious activity in . . . an area where we've had recent crimes."

Dapkins activated the mobile video recorder in his vehicle and spoke with the juvenile driver. That conversation can be heard clearly, while only portions of Sergeant Geleta's conversation with defendant are audible. Dapkins noticed that the driver was extremely "nervous" and "jittery," and ordered him out of the car.

Dapkins informed the driver that he was being stopped because the police received a call "describing . . . the actions of this vehicle as being suspicious . . . ." The driver explained that he was dropping off a friend.

Dapkins continued to question the driver, who eventually admitted that he and defendant had intended to purchase marijuana, but that they changed their minds. Officer Dapkins then told the driver that he was under arrest and read him his Miranda1 rights, but it is not clear what he was being charged with.2

Dapkins then asked the driver to sign a consent-to-search form, and explained that it was "to make sure there are no drugs in the vehicle." After searching the driver, Dapkins found a bag of marijuana in his right-front pocket.

During this time, Geleta asked defendant "if he had anything on him." Defendant responded that he had a pipe. Geleta told this to Dapkins, who then placed defendant under arrest and seized the pipe. Defendant was later issued a complaint-summons charging him with possession of drug paraphernalia, N.J.S.A. 2C:36-2.

Defendant moved to suppress the evidence, challenging the validity of the vehicle stop. After a hearing, the municipal judge denied defendant's motion, noting that there was "enough . . . to further investigate" because the vehicle matched the specific description provided by dispatch and there were previous break-ins in the area. Defendant entered a conditional plea to the downgraded charge of loitering to obtain a controlled dangerous substance, N.J.S.A. 2C:33-2.1.

After de novo review, the Law Division affirmed the municipal court's denial of defendant's motion to suppress. The judge considered the "time of day . . . coupled with the strange pause of the vehicle in front of the residence" in holding that there was "objective and readily observable reason[] to suggest a problem with the driver or the vehicle, and thus the stop was justified under the community caretaking doctrine."

On appeal, defendant raises the following arguments

the warrantless stop and seizure violated [V.A.-M.]'s rights and protections under the 4th amendment of the united states constitution and art. I, para. 7 of the new jersey constitution.

a. the stop cannot be justified by the community caretaking doctrine.

b. the stop in this case was an unconstitutional investigatory stop.

In reviewing a lower court's determination on a motion to suppress, we evaluate whether the findings made by the judge could reasonably have been reached on sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007). We "give 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 the reviewing court cannot enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 164 (1964)). However, in reviewing a motion to suppress, we review a lower court's legal conclusions de novo. State v. Rockford, 213 N.J. 424, 440 (2013).

A warrantless seizure of a person is presumptively invalid as contrary to the United States and the New Jersey Constitutions unless that warrantless seizure falls within one of the few well-delineated exceptions to the warrant requirement. State v. Mann, 203 N.J. 328, 337-38 (2010). An investigatory stop of a person, sometimes referred to as a Terry3 stop, is one such exception. State v. Rodriguez, 172 N.J. 117, 126-27 (2002). A police officer may conduct an investigatory stop of a person if that officer has "'particularized suspicion' based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). "The stop must be reasonable and justified by articulable facts; it may not be based on arbitrary police practices, the officer's subjective good faith, or a mere hunch." State v. Coles, 218 N.J. 322, 343 (2014).

"Temporary detention during an investigatory traffic stop, even if brief and limited, constitutes a 'seizure' of 'persons.'" State v. Sloane, 193 N.J. 423, 430 (2008). "[W]hen a police officer conducts a traffic stop of a private vehicle, the passenger as well as the driver are seized under both the federal and state constitutions." Id. at 431.

Applying that standard, defendant was seized and not free to leave when Dapkins ordered the driver of the vehicle to stop. The State claims the stop was justified under the community-caretaking doctrine because "the report of an occupant running around the vehicle, the vehicle's brief pause . . . and the time of day, suggested that there was something amiss with the vehicle or its driver."4

The community-caretaking doctrine was established by the United States Supreme Court in three cases, which held that inventory searches of vehicles were justified because police often "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." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 715 (1973); See also Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739, 746 (1987); South Dakota v. Opperman, 428 U.S. 364, 368, 96 S. Ct. 3092, 3097, 49 L. Ed. 2d 1000, 1005 (1976).

Recently, our Supreme Court analyzed Cady, Opperman, and Bertine, and refused to extend the community-caretaking doctrine to justify the warrantless search of a home absent exigent circumstances. State v. Vargas, 213 N.J. 301, 325 (2013). The Vargas Court noted that "[u]nder our state law jurisprudence outside of the car-impoundment context warrantless searches justified in the name of the community-caretaking doctrine have involved some form of exigent or emergent circumstances." Id. at 326. The Court acknowledged that police officers perform both law enforcement and community caretaking functions, but cautioned that, when "they are engaged in either activity, they must conform to the dictates of the Constitution." Id. at 328. In holding that it "now expressly disapprove[s] of language suggesting that the community-caretaking doctrine permits the warrantless entry into . . . a home in the absence of some form of exigent circumstances[,]" id. at 321, the Court explained that the United States Supreme Court cases "did not carve out community caretaking as an exception to the warrant requirement." Id. at 317. Rather, the Court explained that community caretaking may "inform an analysis of whether a search or seizure is 'reasonable' . . . in the realm of automobiles searches." Ibid.

In State v. Diloreto, the Court analyzed the difference between stopping an individual as a field inquiry, which requires no suspicion or justification for the inquiry because the individual is free to leave, and a stop under the community-caretaking doctrine. 180 N.J. 264, 275-76 (2004). The Court stated that the "conceptual framework of a field inquiry and the caretaker doctrine 'overlap[,]' . . . [but that] the caretaker doctrine permits the police to exceed a field inquiry's level of intrusiveness, provided that their action is unconnected to a criminal investigation and objectively reasonable under the totality of circumstances." Id. at 278.

In Diloreto, an officer observed a vehicle parked at an "odd angle" in a hotel parking lot, with a fogged interior and the engine turned off. Ibid. There had been recent automobile thefts and suicides at the location, and the officer conducted an MDT check of the license plate. Id. at 270. The check identified the registered driver as "an endangered missing person." Ibid. The officer called for backup, approached the vehicle, shined his flashlight inside, noticed the defendant was asleep, and knocked on the window. Id. at 271-72. After asking for identification and confirming that the defendant was reported missing, the officers frisked the defendant for their safety, which turned up a gun ammunition clip. Id. at 273.

The Court found that the community-caretaking doctrine justified the detention of the defendant because the "defendant was a person at risk, prompting the officers' caretaker role." Id. at 278. The Court emphasized: "[i]t bears repeating that the most significant factor in our analysis (and a factor that should serve to narrow the reach of our holding) is that the police in this case were responding to an alert regarding an endangered missing person." Id. at 281. The Court noted that the "community caretaker function [should not be used] as a pretext for a criminal investigation." Id. at 280.

In State v. Washington, we upheld the stop of a driver who was observed weaving within his lane and travelling 36mph in a 45mph zone under the community-caretaking doctrine because, although the driver did not commit a traffic violation, the conduct "engender[ed] reasonable grounds to conclude that the vehicle is a potential safety hazard to other vehicles and that there is either something wrong with the driver, with the car, or both." 296 N.J. Super. 569, 572 (App. Div. 1997).

The stop of a vehicle under the community-caretaking doctrine requires a reasonable belief that a driver of a car poses a danger to himself or the community at large. See State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992). In Martinez, we recognized that a vehicle's "abnormal conduct" late at night justified officers' community caretaking stop because: "(a) something might be wrong with the car; (b) . . . its driver; [or] (c) a traffic safety hazard is presented to [other] drivers approaching from the rear when an abnormally slow moving vehicle is operated at night on a roadway without flashers[.]" Ibid.

In State v. Adubato, police received a report of a potentially intoxicated driver that was circling around the neighborhood and getting in and out of his vehicle. 420 N.J. Super. 167, 179-80 (App. Div. 2011). When the officer arrived, he pulled behind the vehicle, which was parked on the side of the street, activated his lights, approached the vehicle, and, when the driver opened the window, the officer smelled alcohol on his breath. Id. at 180-81.

In that case, we emphasized that, because the car was already parked, a Terry stop did not occur until the moment the officer smelled alcohol on the driver's breath; at that moment, there was an articulable suspicion of criminal activity. Id. at 181-82. Before that, the officer acted reasonably under the community caretaking function in activating his lights to protect himself and the occupant of a vehicle in front of him. Id. at 180-81; see also State v. Goetaski, 209 N.J. Super. 362, 364-66 (App. Div.) (holding that community caretaking justified the stop of a vehicle after the officer observed it traveling slowly with its turn signal on for one-tenth of a mile at 4 a.m. in a 50mph zone, because the officer was allowed to "inquire generally if there was any problem or difficulty[,]" but noting that the case was "about as close to the constitutional line as we can condone"),5 certif. denied, 104 N.J. 458 (1986).

By contrast, in State v. Cryan, we held that the community caretaking function did not justify an officer pulling over a driver who was stopped at a green light for five seconds at 4:24 a.m. when there were not any other vehicles on the road. 320 N.J. Super. 325, 327 (App. Div. 1999). In Cryan, we distinguished Martinez, Washington, and Goetaski, noting that "[i]n each of [those] cases the stop was justified on a community caretaking basis because 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 331.

Applying these principles to the case before us, we conclude that the community-caretaking doctrine did not justify the stop of the vehicle and warrantless search of defendant, as the officers did not have an objectively reasonable basis to believe that an emergency required immediate action to protect life or prevent serious injury.

Officer Dapkins did not indicate that he stopped the vehicle because of the manner in which it was driving. As such, the Law Division's reliance on the "strange pause" of the vehicle and its attempt to continue driving is misplaced. Moreover, it is clear from Dapkins's testimony that, once he spotted the vehicle and realized it matched the description he had received from dispatch, he intended to stop it based on the report alone. The "strange pause" came after the decision to stop the car had already been made.

No motor vehicle violations were reported or observed either at the Encampment Drive location or where the vehicle was stopped. Officer Dapkins stated that he stopped the vehicle because of the earlier report that "[the passenger] or [defendant] kept getting out of the car and walking to different portions of the parking lot [at Encampment Drive] . . . so we're investigating suspicious activity."

Clearly, Officer Dapkins was not performing a community caretaking function when he stopped the vehicle because there were no exigent circumstances, and he was not acting to ensure the safety and well-being of the driver or the citizenry at large.

Turning to the report relied upon by Dapkins in stopping the car, we find that the anonymous call to police reporting purely benign and non-criminal activity was insufficient to justify an investigative stop. It is undisputed that the call reported a parked car, with a white male running up and down a hill. While a concerned citizen was apparently sufficiently troubled to call police, the reported activity was more in the nature of innocent frolicking than criminal activity. Simply put, a parked car and a male running up and down a hill on a winter evening does not rise to the level of reasonable articulable suspicion of criminal activity necessary to justify an investigatory stop.

Because the stop was constitutionally defective, the subsequent statements by, and search of, defendant must be suppressed.

Reversed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Dapkins testified that the driver was arrested for possession of marijuana, but he was clearly placed under arrest before the marijuana was discovered.

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

4 We note that this argument is presented as an alternative to the State's claim that Dapkins stopped the vehicle because he had reasonable suspicion to investigate possible criminal activity.

5 See also State v. Drummond, 305 N.J. Super. 84, 88 (1997) (holding that where police observed a darkened car parked at a closed carwash around midnight, they were justified in pulling into the lot and "making an inquiry on property and life"); but see State v. Costa, 327 N.J. Super. 22, 28-29 (App. Div. 1999) (holding that community caretaking function did not justify detention of a driver and passenger sitting in vehicle parked in well-lit tavern while it was open and other vehicles were present).