March 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRENDAN MCDADE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 4, 2009
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 officer's "mistake" one of fact rather than law, the judge concluded:
Quite frankly this Court determines that this is a factual dispute as to whether or not there was enough lights. Whether the statute requires one, two or more really doesn't matter. The question becomes whether or not the vehicle is operated safely on the road for the protection of not only the driver, but others who have to travel the roadways. And that's the real intent of the statute. And clearly the officer had every right in the Court's view to make that initial stop based on his observation as he testified that at least one light was out.
I'm going to deny that application for the reasons that I've set forth. Again, this is a factual dispute. Even in the event [the municipal court judge] was to decide that there was no violation of the statute with regards to maintenance of the lamps, clearly . . . that doesn't take you to an impermissible stop. It just doesn't.
And for those reasons the application is denied.
We disagree that the "community caretaking function" exception to the warrant requirement applies here. That doctrine represents a narrow exception to the warrant requirement, State v. Diloreto, 180 N.J. 264, 282 (2004), reserved for "a core set of community caretaking activities that have a longstanding tradition and that have achieved relatively unquestioned acceptance in local communities[,]" based on a service notion that police serve to ensure the safety and welfare of the citizenry at large. Id. at 281 (quoting Debra Livingston, Police, Community Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261, 302 (1998)). Thus, "the responsibility of police officers to search for missing persons, to mediate disputes, and to aid the ill or injured has never been the subject of serious debate; nor has [the] responsibility of police to provide services in an emergency [been subject to such debate]." Ibid.
To be sure, the "community caretaking function" may also be implicated where something abnormal is observed concerning the operation of a motor vehicle. State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992). In Martinez, a motorist was observed traveling at less than ten miles per hour in a twenty-five mile an hour zone at 2:00 a.m. Id. at 77. We observed that such abnormal conduct suggests a number of objectively reasonable concerns: (a) something might be wrong with the car;
(b) something might be wrong with its driver; or (c) a traffic safety hazard is presented to drivers approaching from the rear when an abnormally slow moving vehicle is operated at night on a roadway, without flashers. Id. at 78. We recognized that these concerns triggered the "community caretaking function." Ibid.
In State v. Cohen, 347 N.J. Super. 375 (App. Div. 2002), a police officer initially observed that the driver-side window of a passing vehicle was tinted black, preventing him from seeing inside. Id. at 376-77. Considering the dark tint to constitute significant obstruction of vision, the officer stopped the vehicle whereupon he confirmed that the side window had been darkened by an after-market product in violation of Title 39. Id. at 377, 380. But separate and apart from the motor vehicle violation, we found the stop justified on the basis that the "officer's belief that the darkly-tinted windows represented a significant obstruction . . . [was] a sufficient reason to implicate 'the community caretaking function' and permit inspection of what appeared to be a hazardous vehicular condition that deviates from the norm." Id. at 381.
In contrast here, the exclusive basis for the vehicular stop was Officer Maisano's belief that one extinguished rear tail light contravened the motor vehicle code and defendant was in fact issued a summons charging a violation of N.J.S.A. 39:3-66, "[m]aintenance of lamps." Although the State now posits that such an equipment violation, even if not violative of Title 39, nevertheless creates an unsafe condition implicating the officer's community caretaking role, the fact remains there was no proof in the record that operation of defendant's vehicle otherwise presented a traffic safety hazard or endangered the safety and welfare of defendant, the officer, or others on the road at the time. Indeed, Officer Maisano himself did not express any public safety concerns as a caretaker, and appears to have acted solely pursuant to law enforcement objectives, believing defendant to be operating a vehicle in contravention of law. Absent such concerns, the automobile stop cannot pass muster as a public safety measure and accordingly, we perceive no basis for invoking the narrowly tailored community caretaking doctrine.
Consequently, the instant suppression motion must turn on whether the officer had reasonable suspicion to stop defendant's car. On this score, a valid motor vehicle stop requires that an officer have "a reasonable and articulable suspicion" that a motor vehicle violation has been committed by the driver. State v. Puzio, 379 N.J. Super. 378, 381-82 (App. Div. 2005); State ex rel. D.K., 360 N.J. Super. 49, 54 (App. Div. 2003); State v. Murphy, 238 N.J. Super. 546, 553-54 (App. Div. 1990). The officer's belief that a traffic violation has occurred, however, must be objectively reasonable. Puzio, supra, 379 N.J. Super. at 383; D.K., supra, 360 N.J. Super. at 54.
In determining what is "objectively reasonable," there is a clear distinction between those cases where a defendant's car is stopped based on an entirely erroneous reading of the statute and those where the officer correctly understands the statute, but arguably misinterprets the facts concerning whether a vehicle or operator has violated the statute. Puzio, supra, 379 N.J. Super. at 382. In the latter, courts have approved the motor vehicle stop because it is only necessary that the officer have a reasonable and articulable suspicion of a violation. In such circumstances, it is not necessary or relevant that the facts testified to by the officer actually support a finding of guilt beyond a reasonable doubt of the statutory violation. See, e.g., D.K., supra, 360 N.J. Super. at 52-55 (obscured license plate); Cohen, supra, 347 N.J. Super. at 380-81 (tinted windows significantly obstructing vision); Murphy, supra, 238 N.J. Super. at 554 (failure of license plate to be conspicuously displayed). In each of these cases, the officer entertained a reasonable belief that a traffic law had been violated. In each, the only dispute was whether the officer's factual observations established guilt beyond a reasonable doubt of the traffic offense, not whether the officer correctly interpreted the statute.
As to the former category of cases, however, we held in Puzio:
Although our courts have never addressed this precise issue, other jurisdictions have concluded that where an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop. "[T]he legal justification [for the vehicle stop] must be objectively grounded." Even under the good faith exception rejected in Novembrino[,]*fn4 objective reasonableness is judged through the eyes of a reasonable officer acting "in accordance with governing law. To create an exception here would defeat the purpose of the exclusionary rule, for it would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey." If officers were permitted to stop vehicles where it is objectively determined that there is no legal basis for their action, "the potential for abuse of traffic infractions as pretext for effecting stops seems boundless and the costs to privacy rights excessive." We cannot countenance an officer's interference with personal liberty based upon an entirely erroneous understanding of the law. [379 N.J. Super. at 383-84 (internal citations omitted).]
Thus, in Puzio, we held the automobile stop was not justified by the officer's belief that the defendant was operating his vehicle in violation of a statute requiring display of business and address on a commercial vehicle when in fact the statute, by its plain and unambiguous terms, did not apply to passenger vehicles, which was the type of vehicle defendant was driving. 379 N.J. Super. at 382-83.
Even federal courts, which honor the good faith exception, have declined to extend it to motor vehicle stops involving a mistake of law. See, e.g., United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000); United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999). In Lopez-Valdez, a state trooper stopped the defendant's car near the U.S.-Mexican border believing that a broken tail light, emitting both white and red light, constituted a traffic infraction. 178 F.3d at 284-85.
The statute at issue required that every motor vehicle be equipped with at least two tail lamps mounted on the rear, which when lighted must emit a red light plainly visible from a distance of one thousand feet to the rear. Id. at 288 n.5. However, a case that had been decided and published ten years earlier made clear that in Texas, state police officers do not have authority to stop vehicles with cracked tail light lenses that "permit some white light to be emitted with red light." Id. at 288. Finding the trooper's interpretation of the law erroneous, albeit in good faith, the court granted the suppression motion, reasoning that "if officers are allowed to stop vehicles based upon their subjective belief that traffic laws have been violated even where no such violation has, in fact, occurred, the potential for abuse of traffic infractions as pretext for effecting stops seems boundless and the costs to privacy rights excessive." Id. at 289.
Thus, suspicion based on a mistaken view of the law cannot be the reasonable suspicion required for the Fourth Amendment, because the legal justification for a traffic stop must be objectively grounded. Here, we are satisfied that the law requires only a total of two functioning rear tail lamps, one on each side. Thus, if as defendant maintains, only one of four tail lights was extinguished, leaving the minimum number of working rear tail lights, then no violation of the law occurred here and Officer Maisano's honest but mistaken view of the law cannot justify the vehicular stop in issue. However, neither the municipal court judge nor the Law Division judge made any factfinding as to the exact number of rear tail lights on defendant's 2001 Volkswagen Jetta, nor for that matter did either of them resolve whether the officer's interpretation of the statute was correct. Instead, both judges referred generally to the officer's good faith belief and, in addition, the Law Division judge cited the community caretaking doctrine, both of which, for reasons already stated, do not justify the automobile stop in this instance.
Rather, the legality of the stop here depends exclusively on whether there were a total of two functioning rear tail lights, one on each side, a fact we are unable to ascertain from the state of the present record. Under the circumstances, then, we are constrained to remand to the Law Division for further factfinding.
Remanded for further proceedings consistent with this opinion.