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State v. Allan

May 31, 1995

STATE OF NEW JERSEY, PLAINTIFF,
v.
MOHAMMAD ALLAN, DEFENDANT.



Rothenberg, J.s.c.

The opinion of the court was delivered by: Rothenberg

ROTHENBERG, J.S.C.

This matter comes before this court by way of appeal from the defendant Mohammad Allan's convictions in the Municipal Court of Clifton. The defendant was convicted of obstructing the administration of law, in violation of 2C:29-1a, driving under the influence of alcohol, in violation of N.J.S.A. 39:4-50, and making an illegal left turn, in violation of N.J.S.A. 39:4-124. A motion to suppress was heard on July 28, 1994, and there were subsequent trial dates on September 28, 1994, October 6, 1994, November 23, 1994, and November 30, 1994.

The incident which gave rise to these charges occurred on February 8, 1994, when Passaic County Sheriff's Officer Michael Bove observed a 1985 red Mitsubishi on Clifton Avenue in Clifton, New Jersey, make an illegal left turn onto Main Street. Officer Bove observed the same vehicle make another left on Madison Avenue and stopped the vehicle. The officer approached the vehicle and detected an odor of alcohol on the driver's breath but did not believe at that point that the driver was intoxicated. Officer Bove requested the driver's credentials, instructed the driver to remain in his vehicle, and brought the credentials back to his patrol car. The driver's license belonged to the defendant, Mohammad Allan, but the vehicle was not registered in the defendant's name. Officer Bove then proceeded to run a motor vehicle check via radio. As Officer Bove was running the motor vehicle check, he observed the defendant exit his vehicle and flee the scene through a nearby yard. Officer Bove notified headquarters that he was pursuing the defendant on foot and requested back up. He further advised that the Clifton Police Department should be notified.

After a search of the area, Officer Borroughs of the Clifton Police Department apprehended the defendant in a nearby yard. He brought the defendant back to the place of the initial stop where Officer Bove identified the defendant as the driver of the vehicle. Officer Bove testified that as the defendant was "huffing and puffing" from the chase, he detected a strong odor of alcoholic beverage on his breath. He further testified that the defendant refused to perform field sobriety tests. Officer Bove administered Miranda warnings to the defendant and he was brought to headquarters. Sheriff's Officer Capizzi administered two breathalyzer tests which revealed blood alcohol levels of .11 percent and .12 percent.

Defense counsel made a motion to suppress any statements made by the defendant after the initial stop and also to suppress the results of the breathalyzer test. The motion was denied on July 28, 1994, by the trial Judge. After the motion was denied, the trial Judge requested that both counsel stipulate that the trial would resume from the point where Officer Bove's testimony in connection with the motion to suppress concluded. Defense counsel refused to stipulate and the trial Judge indicated that at the next hearing date, the trial would commence from the beginning and the state would present its case in chief.

The trial was continued to September 28, 1994, because Officer Bove was unavailable to testify during the month of August. However, contrary to his prior ruling, the trial Judge determined that the trial would commence from the point at which the testimony concluded in connection with the motion to suppress. Defense counsel objected and moved to have the trial start anew or have the trial Judge recuse himself since he had heard the motion to suppress. The trial Judge denied defense counsel's request for recusal and again ruled that the trial would resume from the point where Officer Bove concluded his testimony in connection with the motion to suppress. In addition, the trial Judge prevented defense counsel from cross-examining Officer Bove as to any testimony presented during the suppression motion. The defendant was ultimately convicted of all charges on November 30, 1994, and he appeals his convictions.

The defendant raises two issues on appeal. First, the defendant argues that "there was no probable cause to arrest Mohammad Allan at the inception of the motor vehicle stop and, thus, defendant was free to leave the scene and any evidence obtained after his unlawful seizure must be suppressed."

Defense counsel cites State v. Tucker, 265 N.J. Super, 358, 627 A.2d 174 (App. Div. 1993), which stands for the proposition that flight alone is insufficient to create a reasonable suspicion of criminal conduct. However, the instant case is clearly distinguishable from the Tucker case, since here the defendant's flight was coupled with a lawful motor vehicle stop. Officer Bove had probable cause to believe the defendant was violating a motor vehicle statute, namely making an illegal left turn. Therefore, Officer Bove was justified in stopping the defendant's motor vehicle and detaining the defendant in order to check his driver's license and vehicle registration. Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979).

The assertion that a person is free to flee during a motor vehicle stop to avoid apprehension for some other unlawful act that a police officer has yet to detect is wholly without merit. Officer Bove had articulable suspicion that the defendant may have been engaged in unlawful activity because he fled the scene during a lawful motor vehicle stop. Pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the officer was justified in pursuing and detaining the suspect for questioning in connection with the suspected unlawful activity. After the defendant was apprehended, he was detained in order to further investigate the circumstances surrounding the motor vehicle stop and the defendant's subsequent flight. Probable cause arose when Officer Bove detected a strong odor of alcohol on the driver's breath and the driver refused to perform field sobriety tests. Thus, the trial court correctly found that there was probable cause to arrest the defendant and properly denied the defendant's motion to suppress his statements and the results of the breathalyzer tests.

Defense counsel's second argument is that "Defendant Mohammed Allan was denied a fair trial when the trial court determined that defendant was not entitled to a separate trial after the motion to suppress was denied."

Pursuant to R. 7:4-2(f), municipal courts may entertain suppression motions related to warrantless searches on matters within its trial jurisdiction. See State v. Mazurek, 237 N.J. Super. 231, 567 A.2d 277 (App. Div. 1989). The municipal court must also conduct the trial on the underlying charges. This places the municipal court Judge in the unique position of hearing the motion to suppress, which may contain evidence or testimony that might not be admissible at trial, then conducting the subsequent trial. In theory, the trial Judge must accomplish this without considering the evidence presented in the motion to suppress. While this may be a difficult task, it is one that municipal court Judges are expected to perform under R. 7:4-2(f).

In the instant case, the municipal court Judge heard the motion to suppress pursuant to R. 7:4-2(f) which he properly denied. At the Conclusion of the ruling on the motion to suppress, the trial Judge stated:

what has happened since I handled suppression motions for about five years now... we usually proceed at that point with the State's case and there has never been an objection in doing that. So that it says you continue after the suppression motion, there's always been a stipulation that what's already transpired would be a part of the main ...


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