On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. 06-100.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Sabatino and Alvarez.
Defendant, Kimberly Mahon, appeals her driving while intoxicated (DWI) conviction, N.J.S.A. 39:4-50. Defendant had filed a motion to suppress in the municipal court, asserting the stop which resulted in her arrest was improper. The municipal court judge denied the motion, and after de novo review, Rule 3:23-8(a), the Law Division again denied defendant's motion to suppress and found her guilty of driving while intoxicated.*fn1 R. 3:23. The issue raised for our consideration is whether the stop was a proper exercise in constitutionally permissible community caretaking functions. We agree that it was, and therefore affirm.
On July 23, 2006, at approximately 1:45 a.m., a veteran Madison Borough police officer approached a red light. He noticed the only other vehicle stopped at the intersection because, despite having the green light, it was not moving. The vehicle "was just sitting in the intersection," for "at least a minute." The officer's vantage point in his marked car was some fifty feet away. The driver looked towards the officer's car, then slowly proceeded through the intersection. The officer noted there were two occupants in the vehicle. He promptly stopped the driver, as he wanted "to make sure everything was okay within the vehicle," and because he felt he had just witnessed the driver committing the motor vehicle offense of obstructing traffic flow, N.J.S.A. 39:4-67.
Defendant contends the stop was entirely unjustified and unwarranted. The State argued to the contrary, that the circumstances fall well within the community caretaking functions of law enforcement.
In State v. Goetaski, 209 N.J. Super. 362, 365 (App. Div.), certif. denied, 104 N.J. 458 (1986), Judge King noted that community caretaking requires police to deal with drivers in the context of a "so-called 'benign' automobile stop made to assist the occupant of the vehicle if necessary." In that case, police were found to have properly stopped a driver observed during early morning hours driving slowly with the left-turn indicator flashing on a fifty miles per hour rural roadway. Id. at 363.
After Goetaski, we upheld a stop under the theory of community caretaking where, after 2:00 a.m., a motor vehicle was being driven "at a snail's pace, . . . less than ten [m.p.h.]," through a residential area. State v. Martinez, 260 N.J. Super. 75, 77 (App. Div. 1992) (alterations in original). There we specified that the "abnormal" operation of the vehicle suggested a number of concerns including "something . . . wrong" with the driver or the vehicle, the creation of "a traffic safety hazard," or the possibility that homes were being "'cased' for targets of opportunity." Id. at 78. Balancing those concerns against the minimal intrusion involved in the stop, we found it to be objectively reasonable and constitutionally permissible within the meaning of community caretaking as defined in Goetaski. Martinez, supra, 260 N.J. Super. at 78.
In like manner, in State v. Washington, 296 N.J. Super. 569 (App. Div. 1997), we found a motor vehicle stop lawful where, at around 12:20 a.m., the driver was observed weaving within his lane of travel while proceeding at thirty-six miles per hour in a forty-five mile per hour zone. Id. at 571. Weaving at an atypically slow speed during the early morning hours raised a "reasonably objective basis" for the stop. Id. at 572. The operation of the vehicle presented a potential hazard to other drivers and therefore, in the proper exercise of community caretaking, the officer was expected to determine whether there was "either something wrong with the driver, with the car, or both." Ibid. Community caretaking is a function necessitated by "the ubiquity of the automobile and the dynamic, differential situations police officers are confronted with to promote driver safety." Ibid.
Defendant analogizes the circumstances of this stop, however, to those found in State v. Cryan, 320 N.J. Super. 325 (App. Div. 1999). In that case, the stop was found to be constitutionally flawed. Police were not engaging in a valid exercise of the community caretaking function where a driver hesitated for five seconds before proceeding through an intersection, making a slow left-hand turn, when a stoplight turned green, at 4:24 a.m. Id. at 327.
These circumstances are significantly different from those presented in Cryan, where the delay in proceeding through the intersection was only five seconds. In this case, the delay was more than sixty seconds. In Cryan there was no eye contact between driver and officer, in this case, the driver appeared to look right at the officer's marked car. Ibid. In Cryan there was no motor vehicle violation, in this case there was conduct that the officer considered to be within the scope of the obstruction of traffic statute. Id. at 331-32.
Defendant submits for our consideration two cases from other jurisdictions: State v. McAfee, 783 P.2d 874 (Idaho Ct. App. 1989) and Washington v. DeArman, 774 P.2d 1247 (Wash. Ct. App. 1989). Neither case adds anything to the doctrine of community caretaking as developed in our state, and in fact may be at variance with our own state's doctrine. They are not persuasive support for the conclusion defendant wishes us to reach. We believe our doctrine is the more ...