Before Judges Skillman, Cuff and Lefelt. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, 46- 01.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: *fn1 September 18, 2002
We granted the State's motion for leave to appeal an order granting defendant's motion to suppress. Defendant responds that the police lacked an articulable suspicion to stop his vehicle and further contends that the appeal is barred by principles of double jeopardy. We affirm.
On November 5, 2000, defendant Salvatore Golotta was driving northbound on Route 206 when he was stopped by the Peapack- Gladstone police. Following the administration of a breathalyzer, defendant was charged with driving while intoxicated contrary to N.J.S.A. 39:4-50. Defendant filed a motion to suppress the results of the breathalyzer test. Following an evidentiary hearing on his motion, the municipal court judge denied the motion. Defendant entered a conditional plea of guilty and filed a timely appeal in the Law Division. Following a de novo review of the record of the motion to suppress, the Law Division judge granted defendant's motion. He found the officer observed no activity by defendant which would warrant a stop but detained defendant solely based on the information from an anonymous caller. Therefore, he vacated the guilty plea and entered a judgment of acquittal.
The factual record is scanty. The municipal court judge appropriately confined the testimony to the information received by the officers from the dispatcher and the observations of defendant's operation of his motor vehicle. From that record we learn that at approximately 9:30 p.m. on November 5, 2000, the Peapack-Gladstone police received a telephone call from an anonymous caller reporting an erratic driver traveling northbound on Route 206. Officers Stephen Ferrante and Frank French were dispatched to locate the motor vehicle. Each officer was driving a patrol car.
Ferrante testified that the dispatcher told him the vehicle was driving erratically, that it was out of control and weaving back and forth. He was informed that he was looking for a blue pick-up truck bearing the license plate VM407B. At the intersection of Pottersville Road and Route 206, Ferrante observed a blue truck. He testified as follows:
A: I approached 206 at the crest of the hill. At the traffic light, as I approached, I witnessed the blue...a blue pick-up truck pass in front of me. Officer French then was northbound on 206 behind this vehicle. And we initiated the stop at the same time.
Q: Did Officer French actually initiate the stop?
A: Officer French was in front of me. Activated as...We activated our lights at the same time. And Officer French . . . was ahead of me in stopping the vehicle.
THE COURT: Can you describe what the vehicle was doing?
WITNESS: Sir, I was only behind the vehicle for a matter of four to five seconds before we ...we effected the...the stop. I could not... I did not witness any...any movements of the vehicle whatsoever.
THE COURT: Can you tell us if the...the other officer did?
THE WITNESS: I cannot. I...I believe that he wasn't...he caught up to the vehicle just as I did. He did...was not ...