September 21, 2007
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
PAUL AMELIO, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal 4642.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2007
Before Judges Kestin and Weissbard.
Following de novo review, R. 3:23-8, the State appeals from an order of the Law Division, granting defendant Paul Amelio's motion to suppress evidence resulting from a stop of defendant's vehicle on December 11, 2005. The stop led to defendant's arrest for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and thereafter for refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. We affirm the suppression order.
At the suppression motion before the municipal court defendant and the State stipulated that the motion was based upon those facts contained in a portion of a report of Clifton Police Officer Peter Turano, as follows:
On the above date, the undersigned, Ptl. Peter A. Turano #204 (car 7, post 7) along with Ptl. Carmen Bermudez #5011 (car 4, post 4), were detailed to 130 Patricia Ave. on a report of a domestic disturbance. The complainant, Marissa Amelio (age 17) contacted police dispatch and reported that she was having a verbal dispute with her father, Paul Amelio. While responding to the incident location, the complainant advised dispatch that her father was "drunk" and that he was leaving the scene operating a black Oldsmobile bearing New Jersey registration, JR463K heading toward Passaic Ave.
Upon arrival to the intersection of Passaic Ave. and Allwood Rd., the undersigned observed a black Oldsmobile Intrigue with the same registration provided by dispatch turning left onto Patricia Place. The undersigned immediately got behind the driver as he parked his vehicle at the side of the road. The driver paused for approximately five seconds and then proceeded to drive away. The undersigned re-entered the patrol vehicle and activated the emergency lights and siren on marked patrol vehicle number 7 in an attempt to stop the driver. The driver continued east on Patricia Place until he pulled partially into his driveway located at 130 Patricia Place.
After the municipal court denied his motion to suppress, defendant entered a "conditional" plea of guilty to DWI with the refusal charge to be dismissed, pursuant to a plea agreement between defendant and the municipal prosecutor. The agreement provided that if the DWI conviction was overturned on appeal, the refusal charge would be returned to the municipal court for trial.
On de novo appeal, Judge Rhode concluded, in an oral decision, that defendant's motion to suppress should have been granted. The court reasoned that the information provided to the police dispatcher, and thence to the patrol officers, did not provide reasonable suspicion that defendant was driving under the influence. We agree.
On the attenuated record*fn1 provided by the stipulation recited earlier, there was no evidence that defendant operated his vehicle in any type of erratic manner suggesting impairment.
The only evidence proffered by the State is the daughter's report that defendant was "drunk." We have no way of knowing what the term "drunk" meant to a seventeen-year-old immediately following a "verbal dispute" with her father -- not an uncommon occurrence. While the report was not from an anonymous caller, its content provided an insufficient basis for a police stop.
As Judge Rhode put it:
However, this is the first case I've ever had where the call wasn't made by another driver observing the person, it was made by a daughter and it was conclusionary in nature. It wasn't, wow, he pulled out of here, he almost hit the neighbor, swerving down the street, I know I saw him have three or four or five shots of vodka before he left, and wow, up the street he almost hit a parked car. None of that, just he was drunk, which is a conclusion.
We agree with the judge that State v. Golotta, 178 N.J. 205 (2003), is distinguishable and does not support the State's position. In Golotta, and in United States v. Wheat, 278 F.3d 722 (8th Cir. 2001), cert. denied, 537 U.S. 850, 123 S.Ct., 194, 154 L.Ed. 2d 81 (2002), upon which it relied, the 9-1-1 caller described erratic driving which he or she had personally witnessed. Golotta, supra, 178 N.J. at 209; Wheat, supra, 278 F.3d at 724. Whether the caller in this case used 9-1-1 or directly called the police department is of no moment. As noted, the deficiency is in the content of her information.
There is no basis for the State's assertion that since defendant's daughter had "lived with him and seen him presumably on a daily basis for many years [s]he would be able to . . . ascertain whether he was intoxicated." Whatever the daughter might have been able to say at trial does not assist a reviewing court in deciding the propriety of the motor vehicle stop.
On this sparse record, we fully concur with Judge Rhode's analysis and conclusion as expressed in his oral ruling of October 27, 2006.
Affirmed and remanded for further proceedings.