On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 20-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Messano.
Following denial of his motion to suppress evidence, defendant Brendan McDade entered a conditional plea of guilty in the municipal court to driving while intoxicated, N.J.S.A. 39:4-50. Defendant appealed to the Law Division, challenging the legality of his motor vehicle stop. After a hearing de novo on the record, R. 3:23-8(a), the judge denied defendant's suppression motion and remanded the matter to the municipal court, where defendant affirmed his conditional plea of guilty and was sentenced to a driver's license suspension and appropriate fines and penalties. On appeal, he challenges the motor vehicle stop as without reasonable suspicion based upon the arresting officer's mistake of law. We remand to the Law Division for further factfinding.
The sole issue on appeal is the validity of defendant's motor vehicle stop. According to the State's proofs, on September 10, 2006, at 12:17 a.m., East Windsor Police Officer Frank Maisano stopped the 2001 Volkswagen Jetta being operated by defendant because "a passenger side rear tail light [was] out." Undeniably, the Motor Vehicle Code requires two functioning tail lights, one on each side. N.J.S.A. 39:3-61*fn1 ; N.J.S.A. 39:3-66. Although Maisano testified at least three times on direct that he stopped defendant's vehicle because the passenger rear tail light was out, on cross-examination, the officer acknowledged that it was possible that the vehicle has two red tail lights on each side and that only one of the four was out, but that he simply did not recall.*fn2 In fact, during argument following the close of testimony, defense counsel produced a Kelly Blue Book printout displaying a 2001 Volkswagen Jetta presumably showing multiple lights on each side of the vehicle's rear. Although the municipal court judge did not admit the photograph into evidence because the State objected, he nevertheless viewed it "to help identify the look of the Jetta."
In any event, defense counsel argued that Title 39 requires only a total of two functioning tail lights on each side and therefore the malfunctioning of a surplus lamp does not give rise to a reasonable suspicion of a motor vehicle code violation, notwithstanding the officer's mistaken view of the law. The State argued otherwise, that even a non-working excess light bulb implicates a safety concern and thus justifies the motor vehicle stop as part of the police officer's community caretaking function.*fn3 Without any discreet factfinding as to whether defendant's vehicle had two or four rear tail lights, the municipal court judge found that the one malfunctioning lamp justified the vehicular stop, reasoning:
It's a case of first impression here. It's a case of first impression for both of these [learned] trial counsel with respect to whether or not under 39:3-61 which identified lamps, that if one of the lights within a lamp is out, that that is not a basis to stop a vehicle because there's still another light or lamp within the contained lens.
On the date in question, apparently by stipulation, at least a light in the lamp was not functioning, and based upon the officer's testimony he pulled the vehicle over. The officer candidly indicated he doesn't remember which one it was and that there could have been -- one of the lights was still on.
Defense counsel takes the position that since there were still the required number of lights or lamps within the unit, that there was not a violation of the statute, even though the officer saw one portion of the light out.
The prosecutor in the State indicates that if a lamp is out, at the very least it gives the State the opportunity to stop that vehicle and it is an equipment violation.
I think [defense counsel] makes a very good argument, but at this stage, I have a real problem saying that there was not a basis, there this was not some . . . pretextual stop. We acknowledge that a light was out.
This wasn't where, you know, well he made a little wide turn. Something was there, something was physically there. Based upon that, I'm going to deny the motion to suppress.
On de novo review, there was also no factfinding by the Law Division judge as to whether there was a violation of the Motor Vehicle Code. Instead, the judge denied defendant's suppression motion, finding the vehicular stop justified for "safety" reasons. Finding the ...