On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. 07-016.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2008
Before Judges Skillman and Grall.
Defendant was charged in the Riverdale municipal court with careless driving, in violation of N.J.S.A. 39:4-97, driving while under the influence of alcohol, in violation of N.J.S.A. 39:4-50, and refusing to submit to a breathalyzer test, in violation of N.J.S.A. 39:4-50.2. Defendant filed a motion to suppress the evidence against him, which the municipal court denied.
Defendant then entered into a conditional guilty plea under which he reserved the right to appeal the denial of his motion to suppress. The municipal court judge imposed a three-month suspension of defendant's motor vehicle license for driving while under the influence and a concurrent seven-month suspension for refusing to submit to a breathalyzer test. The judge also imposed the other statutorily mandated penalties for those offenses. The judge merged defendant's conviction for careless driving into his conviction for driving while under the influence.
Defendant appealed the denial of his motion to suppress to the Law Division, which reversed. We granted the State's motion for leave to appeal from the order memorializing this ruling.
The evidence of defendant's driving while under the influence was obtained after a stop of defendant's pick-up truck for a motor vehicle violation during the evening of June 8, 2007. The stop was preceded by a 9-1-1 call to the Riverdale Police Department reporting that there were two dogs in a pickup truck in a strip shopping mall located on Route 23. Officer John Barone and another officer arrived on the scene and found the pick-up truck containing the two dogs, which they determined was owned by defendant. The officers reported the situation to the animal control officer, who did not take any action.
Around forty-five minutes later, Officer Barone parked his police car on the shoulder of Route 23 near the exit from the strip mall. From this vantage point, Officer Barone observed defendant drive his pick-up truck out of the strip mall parking lot onto Route 23 without stopping at or near the entrance to the highway. According to Barone, there was a stop sign at the exit from the strip mall, which defendant drove through without stopping. Barone stopped defendant's truck on Route 23 a short distance from the strip mall. This stop resulted in the evidence of defendant's driving while under the influence.
In concluding that defendant's motion to suppress should be granted, the Law Division judge found that defendant had not brought his truck to a stop before entering Route 23. However, the judge concluded that the stop was invalid because the prosecutor failed to prove that the municipality had authorized the stop sign at the exit from the strip mall. In addition, based on a videotape of the stop taken by a camera located on Officer Barone's car, the judge concluded that the stop sign was not at "the proper level or . . . proper location" and that "it might have been nailed to a tree."
"[A] police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Locurto, 157 N.J. 463, 470 (1999)(quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). "To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor vehicle violation occurred." Ibid. The State only has to show that the officer who made the stop had an objectively reasonable suspicion of the commission of a motor vehicle offense. See State v. Pitcher, 379 N.J. Super. 308, 315-16 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); see also State v. Williamson, 138 N.J. 302, 304 (1994). Consequently, the fact that a defendant is subsequently "not found guilty of the motor vehicle violation . . . [does] not 'impugn the propriety of the initial stop.'" State v. Murphy, 238 N.J. Super. 546, 555 (App. Div. 1990) (quoting State v. Nugent, 125 N.J. Super. 528, 534 (App. Div. 1973)). Nor is the validity of the stop affected by the fact that the defendant may have committed a different motor vehicle offense than the one for which he was stopped, so long as the officer making the stop had an objectively reasonable basis for suspicion that some motor vehicle offense had been committed.
In State v. Cooper, 129 N.J. Super. 229, 234 (App. Div. 1974), we held that there is a presumption a traffic control signal placed at a specific location is "official and properly placed there. The burden of going forward and addressing evidence to rebut the presumption then falls upon the defendant."
Defendant did not present any evidence that the stop sign at the exit from the shopping mall was not properly authorized. Therefore, defendant would not have been entitled to prevail even if the issue before the trial court had been whether he failed to stop at the stop sign rather than whether Officer Barone had the reasonable suspicion required to justify a motor vehicle stop.
In any event, even if the lack of a required approval for the stop sign would have provided a defense to a charge of failing to stop at a stop sign, it would not negate the reasonableness of Officer Barone's action in stopping defendant's car. See Pitcher, supra, 379 N.J. Super. at 320 (officer's stop of a motor vehicle based on incorrect motor vehicle records that owner's license was suspended was objectively reasonable); see also Williamson, supra, 138 N.J. at 304. Moreover, even if the stop sign was not properly approved or was not placed at a location where it could be readily observed by a motorist, defendant still could have been charged with a violation of N.J.S.A. 39:4-66(b) which provides in pertinent part that "the operator of a vehicle emerging from an alley, driveway, garage, or private road or driveway, ...