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State v. Golotta

December 16, 2003

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
SALVATORE GOLOTTA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 354 N.J. Super. 477 (2002).

SYLLABUS BY THE COURT

The issue in this search and seizure case is whether a 9-1-1 call placed by a cell-phone user, describing a motor vehicle being driven erratically on a public road, provided a constitutional basis for the police to conduct a stop of the identified vehicle.

On November 5, 2000, at about 9:30 p.m., two officers of the Peapack-Gladstone police department, each driving a separate police cruiser, responded to a dispatch describing a blue pickup truck with the license plate number VM- 407B, traveling erratically on northbound Route 206. A "citizen informant" using a cell phone placed the call to the dispatcher, indicating that the vehicle was "all over the road" and "out of control." The officers proceeded to Route 206 and observed a blue pickup truck traveling northbound on Route 206, matching the description given by the caller, except that the last letter of the license plate was "V" rather than "B." One of the officers immediately initiated a stop and later testified that he had not observed the vehicle being driven improperly.

Subsequent to the stop, the driver, later identified as defendant Salvatore Golotta, submitted to a breathalyzer test, and was charged with driving while intoxicated (DWI) under N.J.S.A. 39:4-50. Defendant moved to suppress the breathalyzer results, arguing that the officers lacked sufficient suspicion to stop the vehicle, not having observed any erratic driving. The municipal court denied defendant's motion. Defendant then entered a guilty plea to the DWI offense, conditioned on his right to appeal the denial of his suppression motion.

Defendant appealed to the Law Division. Following its de novo review of the record, the trial court held that there was insufficient basis contained in the record to justify the stop and, therefore, that the breathalyzer results must be suppressed. After granting the State's motion for leave to appeal, the Appellate Division affirmed in a reported opinion, State v. Golotta, 354 N.J. Super. 477 (2002). We granted the State's motion for leave to appeal and also granted amicus curiae status to the Attorney General.

HELD: Given the significant risk of death or serious injury to the public and to the vehicle's driver, and in view of the information imparted by the 9-1-1 caller, the stop of defendant's vehicle was valid under the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution.

1. The Attorney General's motion to submit the name of the informant is denied. It would be inconsistent with appellate practice for us to accept the proffered information here, especially in view of the fact that the State had ample opportunity two years ago to present it at the proper forum. However, the Court takes judicial notice of other information contained in the Attorney General's brief, namely, generic information describing the 9-1-1 system that is utilized in Somerset County and elsewhere in the State. (Pp. 5-7)

2. It is not disputed that the officers subjected defendant to an investigatory stop, requiring a "minimal level of objective justificationà." State v. Nishina, 175 N.J. 502, 511 (2003). An informant's tip is a factor to be considered when evaluating whether an investigatory stop is justified. Generally, the police must "verify that the tip is reliable by some independent corroborative effort." State v. Rodriguez, 172 N.J. 117, 127-28 (2002). In United States v. Wheat, the United States Court of Appeals for the Eighth Circuit rejected the defendant's argument that the anonymous call via cell phone could not give rise to a reasonable suspicion sufficient to warrant a stop because the police never witnessed any traffic violation in progress or about to occur. 278 F. 3d 722, 724-725 (8th Cir. 2001). The Eighth*fn Circuit set forth certain informational requirements that must be satisfied to uphold the stop - "a sufficient quantity of information" - including sufficient information "to support an inference that the tipster had witnessed an actual traffic violation that compels an immediate stop." Id. at 732. Moreover, the court found that situations involving erratic driving present the public with dangers not found in other situations, such as when a tipster identifies a person suspected of carrying a concealed weapon. (Pp. 7-15)

3. We agree with those courts that have reduced the degree of corroboration necessary to uphold a stop of a motorist suspected of erratic driving in these circumstances. Our rationale is threefold. First, by its nature, a call placed and processed via the 9-1-1 system carries enhanced reliability not found in other contexts. The legislature has enacted a series of statutes designed to implement an enhanced 9-1-1 system. In an expanding number of cases, the 9-1-1 system provides the police with enough information so that users of that system are not truly anonymous even when they fail to identify themselves by name. In addition, our statutes criminalize the false reporting of emergencies and explicitly include within their ambit calls placed to 9-1-1. Second, the conduct at issue is the temporary stop of a motor vehicle based on reasonable suspicion, not the more intrusive search of its contents or arrest of its driver. Without diminishing the enhanced protections that we have accorded citizens under the New Jersey Constitution, particularly in respect of motor vehicles, the fact remains that "there is a lesser expectation of privacy in one's automobile, and in one's office, than in one's home." State v. Johnson, 168 N.J. 608, 625 (2001). Third, an intoxicated or erratic driver poses a significant risk of death or injury to himself and to the public. The risk to life and safety posed by an intoxicated or erratic driver convinces us that it is reasonable and, therefore, constitutional for the police to act on information furnished by an anonymous 9-1-1 caller without the level of corroboration that traditionally should accompany such action. We do not, however, suggest that any information imparted by a 9-1-1 caller will suffice. Nor do we suggest that no corroboration or predictive information is necessary in this setting. (Pp. 15-22)

4. In the case at hand, the three factors outlined herein are satisfied. First, the caller utilized the 9-1-1 system to initiate the police conduct. Second, the intrusion involved a stop of defendant's motor vehicle on a public road, implicating the reduced privacy interests. Third, the caller reported that the vehicle was "weaving back and forth" and was "out of control," implicating safety concerns. In addition, the caller's information unmistakably conveyed a sense that he personally had witnessed an offense in progress and had reported it close in time to his first-hand observations. Finally, despite the plate's last letter being a "V" as opposed to a "B," two like-sounding letters easily confused in transmission, the caller described the vehicle with sufficient specificity to permit the officers reasonably to conclude that defendant's truck was, in fact, the suspected vehicle. Officers faced with such urgent situations need not wait for corroboration that might be fatal to an innocent member of the public or to the driver himself. Although we analyze this case in terms of "reduced" or "less rigorous" corroboration than might apply in other settings, our decision can just as readily be described as doing no more than accepting a level of corroboration commensurate with the level of threat implicated by the tip at issue. (Pp. 22-32)

The judgment of the Appellate Division is REVERSED.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LAVECCHIA, ZAZZALI, ALBIN and WALLACE join in Justice VERNIERO's opinion.

The opinion of the court was delivered by: Justice Verniero

Argued November 3, 2003

In this search-and-seizure case, a cell-phone user telephoned a 9-1-1 operator to report that a particular motor vehicle was being driven erratically on a public road. The question presented is whether that call and the information that it imparted provided a constitutional basis for the police to stop the identified vehicle. Given the significant risk of death or serious injury to the public and to the vehicle's driver implicated by such a call, and in view of the other factors discussed below, we hold that the answer to that question is yes.

I.

These are the pertinent facts as developed at the suppression hearing before the municipal court. On November 5, 2000, at about 9:30 p.m., two officers of the Peapack-Gladstone police department, each driving a separate police cruiser, received a message from a communications center in Somerville. The center's dispatcher relayed to the officers that the center had received a call from "a citizen informant" using a cell phone. According to the one officer who testified, the citizen called to report that a person in a certain vehicle was driving erratically. The officer was informed that the vehicle was "all over the road" and "out of control. It was weaving back and forth."

The caller also described the vehicle as a blue pickup truck with the license plate number, VM-407B, and indicated that it was traveling northbound on Route 206. At the suppression hearing the officer was asked whether the dispatcher disclosed the caller's name or "whether or not a name was obtained[.]" The officer answered that "[a] name was not obtained." The officer further indicated "that [the caller] did not want to file a charge or a complaint... [a]nd did not want to be involved. [The caller] merely wanted to report that this [erratic driving] was occurring."

When the officer received that information, he was traveling westbound on Pottersville Road close to where the road intersects with Route 206. The officer explained, "I approached 206 at the crest of the hill. At the traffic light, as I approached, I witnessed... a blue pick-up truck pass in front of me." (The officer later indicated that he had not observed "any movements of the vehicle whatsoever." The officer made that statement in response to the question, "Can you describe what the vehicle was doing?" Viewing the testimony in context, we understand it to mean that the officer did not see any erratic movements, but did observe the vehicle pass in front of him.) He and the other officer, who was traveling northbound on 206, quickly moved behind the vehicle, and they "initiated the stop at the same time."

The vehicle matched the description given by the caller, except that the last letter of the license plate number was "V" rather than "B." As already indicated, because the testifying officer immediately initiated the stop once he had located the vehicle, he did not notice whether it was being driven improperly. The officer stated that he "was only behind the vehicle for a matter of four to five seconds before [he and the other officer] effected... the stop."

Subsequent to the stop, the driver, later identified as defendant Salvatore Golotta, submitted to a breathalyzer test, and was charged with driving while intoxicated (DWI) under N.J.S.A. 39:4-50. Defendant moved before the municipal court to suppress the breathalyzer results. He argued that, by not observing the alleged erratic driving, the officer had lacked sufficient suspicion to stop the vehicle and, as a result, any evidence gathered after that juncture was inadmissible. Given that position, the suppression hearing focused solely on whether the police were justified in stopping the vehicle and not on any aspect of their conduct that followed the stop. The municipal court denied defendant's motion. Thereafter, defendant entered a guilty plea to the DWI offense conditioned on his right to appeal the denial of his suppression motion.

Defendant appealed to the Law Division. Following its de novo review of the record, the trial court noted that the officer had stopped defendant's vehicle on the basis of the anonymous tip and without himself observing any suspicious conduct. Consistent with its view of the relevant case law, the trial court held that there was an insufficient basis contained in the record to justify the stop and, therefore, that the breathalyzer results must be suppressed.

After granting the State's motion for leave to appeal, the Appellate Division affirmed in a reported opinion. State v. Golotta, 354 N.J. Super. 477 (2002). The panel agreed with the Law Division that the police had not adequately corroborated or verified the anonymous tip and, accordingly, the officers had not formed "a reasonable articulable suspicion of quasi-criminal activity to justify the stop of defendant." Id. at 483. We granted the State's motion for leave to appeal, 176 N.J. 70 (2003), and also granted amicus curiae status to the Attorney General.

II.

Prior to oral argument before this Court, the Attorney General moved to submit the fact that the informant in this case was not anonymous but in reality had given his name to the 9-1-1 operator at the time of the call. As support, the Attorney General has provided a written abstract generated by a computer aided dispatch system that purportedly contains the precise date and time of the call, the caller's name, and other relevant information. Defendant strongly objects to that submission, contending that we should not "re-write the [t]rial [r]ecord" at this belated juncture in the proceedings.

We agree with defendant insofar as the caller's identity is concerned. We recently explained that, as a general rule within a suppression context, "the State on appeal cannot rely on factual testimony or other proof that was not submitted as part of the lower court's record." State v. Wilson, 178 N.J. 7, 14 (2003). It would be inconsistent with appellate practice for us to accept the proffered information here, especially in view of the fact that the State had ample opportunity two years ago to present it at the proper forum, namely, at the original suppression hearing. Thus, we will continue to treat and analyze this case as if the informant had not offered or identified his name to the police.

The Attorney General's brief and motion papers contain other information that generally describes the 9-1-1 system that is utilized in Somerset County and elsewhere in the State. We accept that generic information, which is akin to our taking judicial notice of it, for the limited purpose of assisting the Court in understanding how the 9-1-1 system operates in this setting. See id. at 17 (instructing in search-and-seizure case that appellate courts "can infer or take judicial notice of certain facts in appropriate circumstances"); State v. Garthe, 145 N.J. 1, 12 (1996) (taking judicial notice of similarity of procedures for testing breathalyzer machines and recording results); Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 202(b) (2002) (outlining other examples in which courts have taken judicial notice of certain facts in criminal cases).

III ...


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