STATE OF NEW JERSEY v. RAJENDRA SINGH

NOT FOR PUBLICATION WITHOUT THE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.

RAJENDRA SINGH,

Defendant-Appellant.

______________________________

March 30, 2016

Submitted February 23, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2014-07.

Steven W. Hernandez, P.C., attorneys for appellant (Thomas Cannavo, on the brief).

AngeloJ. Onofri,Acting MercerCounty Prosecutor,attorney forrespondent (Jennifer E.Moran, SpecialDeputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from an October 29, 2014 judgment of conviction for driving while intoxicated (DWI). We affirm.

On May 3, 2013, the Ewing Township Police received a 9-1-1 call from a driver at approximately 2:30 a.m. The caller informed the dispatcher about a possible drunk driver on Route 29. The caller reported the vehicle's license plate number, its make and model, but no other details about defendant's driving behavior. An officer was dispatched to the location and upon arriving at the scene, observed two cars pulled over, one of which was the 9-1-1 caller's car. Defendant was in the other car, in the driver's seat, and his wife was in the passenger seat.

The officer first spoke with the 9-1-1 caller, who told the officer that he had waved a flashlight at defendant as he was driving in order to have defendant pull over. After speaking with the 9-1-1 caller, the officer approached defendant's car and observed that defendant's eyes were bloodshot. The officer also had difficulty understanding defendant's speech. The officer noted that defendant did not smell of alcohol, but was concerned that defendant was either drunk or was experiencing a medical emergency.

After speaking with defendant, the officer asked him to step out of his vehicle to perform field sobriety tests, including a horizontal gaze nystagmus (HGN) test, a vertical gaze nystagmus (VGN) test, the "walk-and-turn" test, and the "one-leg raise" test. The officer considered defendant's performance on each test unsatisfactory, and placed him under arrest.

Defendant was subsequently charged with DWI, Reckless Driving, Obstruction of Traffic, and Refusal to Submit to a Chemical Test. Defendant moved to suppress evidence resulting from the traffic stop on the basis that the stop violated the Fourth Amendment to the United States Constitution and the State Constitution. A hearing on the motion was conducted in the Ewing Municipal Court on March 20, 2014. The Municipal Court judge issued an order denying the motion on May 1, 2014, after which defendant plead guilty to DWI. The remaining charges were dismissed. Defendant was sentenced as a first time offender,1 and incurred several fines, a ninety-day suspension of his driving privileges, and was required to complete twelve hours of work at the Intoxicated Drivers Resource Center.

Defendant subsequently appealed the Municipal Judge's denial of the suppression motion to the Law Division. The Law Division judge granted defendant's motion to stay the license suspension and subsequently heard oral argument on the appeal on October 22, 2014. The court issued an order and written opinion on October 29, 2014, denying defendant's suppression motion. This appeal followed.

Defendant raises the following arguments for our consideration on appeal

POINT I: THE LAW DIVISION ERRED IN DENYING THE MOTION TO SUPPRESS DE NOVO. THE STATE DID NOT MEET ITS BURDEN, UNDER THE FOURTH AMENDMENT OR THE STATE CONSTITUTION, TO PROVE THE REASONABLE AND ARTICULABLE SUSPICION NECESSARY TO JUSTIFY THE INVESTIGATORY STOP OF DEFENDANT.

POINT II: EVEN IF THE INITIAL DETENTION WERE JUSTIFIED, THERE WAS INSUFFICIENT CAUSE TO ORDER DEFENDANT OUT OF THE VEHICLE TO PERFORM FIELD SOBRIETY TESTS. THUS, THE OBSERVATIONS MUST BE SUPPRESSED AND DEFENDANT ACQUITED OF DWI.

POINT III: EVEN IF THE INITIAL DETENTION OF DEFENDANT WERE LAWFUL, THE PROLONGED DETENTION BEFORE HE WAS ORDERED OUT OF THE CAR CONSTITUTED A DE FACTO ARREST NOT SUPPORTED BY PROBABLE CAUSE.

Because the trial court's determination is based on an application of law to established facts, we review the trial court's determination de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). When reviewing a trial court's review of a municipal court decision, we must conclude whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). We defer to the trial court's credibility findings. State v. Cerefice, 374, 383 (App. Div. 2000).

Defendant asserts that police had no reasonable suspicion to initiate, and then continue, the investigatory stop that culminated in defendant's arrest. We disagree. It has been long settled that "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." State v. Golotta, 178 N.J. 205, 212-13 (2003) (citing State v. Locurto, 157 N.J. 463, 470 (1999); Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979)) (internal quotation marks omitted). The reasonable suspicion needed to initiate an investigative stop is not as stringent as the requirements as probable cause. Ibid. (quoting State v. Stovall, 170 N.J. 346, 356 (2002)).

As an initial matter, we note that defendant was not pulled over by a police officer who witnessed a driving infraction. Rather, defendant pulled over because a private citizen waved a flashlight at him while he was driving. Because police were not involved in defendant's initial stop, a reasonable suspicion analysis is unnecessary.

Defendant argues, however, that the continued stop and accompanying investigation by the officer at the scene violated his Fourth Amendment rights. Both parties submit that an investigatory stop occurred, which requires the investigating officer to have a reasonable suspicion that the suspect is involved in criminal activity. See Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1885, 20 L. Ed. 889, 911 (1968). Defendant argues that the officer did not have enough articulable facts to establish a reasonable suspicion that defendant was involved in ongoing criminal activity. An uncorroborated tip from a concerned citizen is, generally speaking, insufficient to establish reasonable suspicion. State v. Rodriguez, 172 N.J. 117, 127 (2002) (citing Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)).

Our Supreme Court, however, has noted that stops prompted by concerned citizens making 9-1-1 calls require less corroboration than other stops made as a result of anonymous tips. Golotta, supra, 178 N.J. at 217-18. The Court noted that 9-1-1 calls are more reliable than other types of anonymous tips because of the circumstances under which 9-1-1 calls are made, including the potential for criminal prosecutions for false reports. Ibid. Additionally, the nature of such a stop is tied to a suspect's use of an automobile. A suspect's privacy interest in his automobile receives less Federal and State constitutional protection than in his or her home; accordingly, a stop of an automobile in such circumstances requires fewer protective measures than do other types of stops. Id. at 220 (citing State v. Johnson, 168 N.J. 608, 625 (2001)). Finally, the Court noted that stopping potentially intoxicated drivers is in the public interest because of the risk they pose to themselves and the public. Id. at 221 (citing State v. Tischio, 107 N.J. 504, 519 (1987)). Such a stop is thus reasonable under the circumstances of this case. Ibid.

The Supreme Court permits police officers to stop an automobile on the basis of a 9-1-1 call alleging intoxicated driving as long as the 9-1-1 caller "convey[s] an unmistakable sense that the caller has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large." Id. at 221-22. The caller must also call "close in time to his first-hand observations." Id. at 222. Finally, the caller must "provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or 'similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller.'" Ibid. (citing United States v. Wheat, 278 F.3d 722, 731 (8th Cir. 2001)).

Here, the officer had access to sufficient, articulable facts that created an objectively reasonable suspicion of criminal activity. The caller in this case clearly communicated the sense that something urgent was ongoing at the time he called. Although the caller did not specifically comment on the driver's behavior, the officer noticed that the caller had pulled defendant over. The caller called as he was following the driver, and provided details concerning the car's location and appearance. Accordingly, the officer's initial stop satisfies the Golotta framework.

Defendant submits that even if the investigatory detention was appropriate under the Federal and State Constitutions, the officer's request for defendant to submit to sobriety testing exceed the purview of the initial investigatory stop. It is well-established that a police officer can request that a suspect exit the car once the car has been stopped. State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div. 2011) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977)). To justify such a request, the officer must have "a reasonable, articulable suspicion that the person is involved in criminal or unlawful activity beyond that which originally justified the stop." Id. at 371-72 (citing State v. Davis, 104 N.J. 490, 504 (1986)). In this case, we agree that the officer had reasonable suspicion that defendant was driving while intoxicated. As an initial matter, the officer first observed that defendant had pulled off to the side of the road, which the officer reasonably believed indicated either intoxication or a medical concern. Further, the officer was unable to understand defendant's speech to the degree that the officer immediately suspected that defendant was intoxicated or was suffering from a medical condition. Defendant's eyes were also bloodshot. These facts, taken together, supported the officer's decision to initiate sobriety testing.

Finally, defendant asserts that he was subject to a prolonged detention that escalated into a de facto arrest because he waited nine minutes in a car for the officer to talk to him. We conclude that this argument lacks sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).

Affirmed.

1 Although this conviction constituted defendant's second DWI conviction, defendant's previous conviction occurred more than ten years prior to this incident. Defendant was thus subject to the step-down provision in the DWI law. See N.J.S.A. 39:4-50.