On appeal from the Superior Court of New Jersey, Law Division, Bergen County, BMA010-014-00.
Judges Pressler, Ciancia and Alley.*fn1
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
As amended September 6, 2001
Defendant Frederick Stampone was found guilty, after a trial de novo in the Law Division, of failing to exhibit a driver's license, N.J.S.A. 39:3-29 and disorderly conduct, N.J.S.A. 2C:33- 2a(1). He appeals and we now reverse both convictions.
Except as otherwise noted, the following version of the facts was elicited through the testimony of arresting Officer Joseph Fazio. On September 7, 1999, at approximately 4:50 p.m., Fazio was driving his patrol car on Hillside Avenue in Saddle Brook when he noticed a white Pontiac with Kansas license plates parked on the residential block in front of 222 Hillside Avenue. Defendant was in the driver's seat and the car's ignition was off. When Fazio drove by, defendant did not make eye contact with him and, in fact, looked away from the officer. A week or two earlier a burglary had occurred "down the street." The officer did not know if a car had been involved in the burglary or whether the burglary had occurred during the night or day. Nothing in the record suggests that Fazio had a description of the burglar or that defendant's appearance in any way suggested he was a burglar. Defendant testified he was wearing a shirt and tie.
Fazio decided he would approach defendant, but not before "calling in the stop." Fazio asked defendant what he was doing there and Stampone replied he was waiting for his girlfriend. In response to Fazio's next question, Stampone said his girlfriend lived "right here at 222 Hillside Avenue." The officer asked her name and defendant gave her first name but said he did not know her last name. Fazio then asked defendant his name and defendant said it was Fred. Defendant would not give his last name to the officer. At this point, Fazio went to the residence at 222 Hillside Avenue and determined no one was home. He relayed that information to defendant, who explained that the woman he was waiting for would be home by 5:00 p.m. In fact, shortly thereafter a woman who lived at 222 Hillside Avenue arrived and acknowledged that she and defendant were dating. Prior to her appearance, defendant was twice asked for "identification" and twice said no. Fazio then asked Stampone for his driver's license and defendant said it was in the trunk. By this time it was raining and according to defendant, raining heavily. Fazio asked if defendant could get the license and defendant said no. When asked again, defendant complied. Defendant went to the trunk and retrieved a manila envelope. Defendant went back inside his car with the envelope and closed the door. Fazio saw defendant reach over to the passenger side with his left arm, but could not see what defendant was reaching for. Fazio then opened the driver's door of the car and defendant "reaches back across. Turns backward over here, grabs the door, slams it shut" and "almost slams it" into Fazio's legs. Fazio again opened the door, grabbed defendant by the arm and pulled him "straight forward." The manila envelope dropped onto the passenger seat. Fazio then "stood in the doorway so he wouldn't be able to close it on me again."
Defendant told Fazio to let go of his arm and cursed at Fazio. The officer let go of defendant and again asked for identification. Defendant gave Fazio a Kansas driver's license which Fazio ran a check on. Defendant's license and registration were in order. While this was occurring or perhaps shortly before, a deputy chief had arrived in his own vehicle. He positioned it so as to block defendant's car in case defendant attempted to drive away.
Defendant told the officer his shoulder was injured and he wanted an ambulance. An ambulance was called and arrived on the scene. Before defendant departed for a local hospital, he was arrested and charged with disorderly conduct and failing to produce a driver's license.
Defendant's version of events differed significantly in many respects from Fazio's. The municipal court judge made no explicit findings of credibility. The Law Division judge also made no explicit credibility findings, although he obviously relied upon Fazio's version of events in reaching his decision. In these circumstances we are not obliged to defer to the Law Division's credibility determinations, but we will evaluate the issues based upon Fazio's testimony. On that version of events, the Law Division judge concluded:
I am convinced, beyond a reasonable doubt, that on the date in question, September the 7th, 1999, that Mr. Stampone did cause or did prevent this officer from effectuating what he intended to do, and that was to ascertain his identity through some identification, in the form of a license. And in doing that he did cause public inconvenience, annoyance or alarm and did engage in tumultuous behavior, specifically, by his actions which I read into the record before: Closing the door, preventing the officer from coming in, making movements in the car, that gave the officer the indications that this defendant might be considering itself to cause the officer to take action against this defendant by opening the door and grabbing his arm. All those things were put into place by Mr. Stampone, improperly, and in contravention of 2C:33- 2A(1). Perhaps he could have been charged with assault, I don't know, I'm not going to make those findings, but I do believe that he violated 2C:33-2A(1). For those reasons I find him guilty of that. I also find that he failed to exhibit a license or other identification which in fact violates 39:3-29 and I find him guilty of that also. . . .
We disagree. In our view, nothing in this factual complex permitted a conclusion that defendant failed to display his driver's license within the meaning of the motor vehicle statute or that he engaged in disorderly conduct within the meaning of the disorderly conduct statute. This entire incident was an unfortunate example of a police officer overreacting to innocuous conduct and a citizen treating an officer with rudeness approaching insolence that only aggravated the situation. At some point, common sense should have prevailed and the two antagonists gone their separate ways. That did not happen, but we are entirely satisfied that as a matter of law defendant cannot be found guilty of a motor vehicle violation and a petty disorderly persons offense on the facts presented in this record.
Initially, we note that nothing in the evidence would support a claim that Fazio had an articulable suspicion of illegal conduct to support a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Maryland, ___ N.J. ___, ___ (2001) (slip op. at 21). Evaluation of such a proposition is always fact-sensitive and similar facts, when mixed and matched with other circumstances, will produce varying legal conclusions. Here though, giving every deference to the expertise of Officer ...