On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 07-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Sapp-Peterson.
Following trial before the Maurice River municipal judge, defendant was convicted of driving while under the influence (DWI), N.J.S.A. 39:4-50, and failure to wear a seatbelt, N.J.S.A. 39:3-76.2. On appeal de novo to the Law Division, defendant argued, as he did before the municipal judge, that police lacked reasonable and articulable suspicion to stop his vehicle. The Law Division judge found that under the three-prong test articulated in State v. Golotta, 178 N.J. 205 (2003), police had reasonable and articulable suspicion sufficient to justify the stop of defendant's vehicle and, therefore, found defendant guilty of the charges. On appeal, defendant contends the Law Division judge "erred in determining that Golotta provided sufficient legal justification for the motor vehicle stop" of defendant's vehicle. We disagree and affirm substantially for the reasons set forth in Judge Richard J. Geiger's June 23, 2008 well-reasoned written opinion.
In State v. Golotta, the Court held there is no constitutional impediment to police conducting an investigatory stop based upon information provided by an anonymous 9-1-1 caller without having the level of corroboration that traditionally would be necessary to uphold such action. Id. at 228. The Court articulated a three-prong test that police must satisfy to justify a motor vehicle stop under such circumstances. First, "[t]he information must convey an unmistakable sense that the caller has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large." Id. at 221-22. Second, "[t]he caller also must place the call close in time to his first-hand observations." Id. at 222. Third, "the 9-1-1 caller must provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or 'similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller.'" Id. at 222 (citing United States v. Wheat, 278 F.3d 722, 731 (8th Cir. 2001), cert. denied, 537 U.S. 850, 123 S.Ct. 194, 154 L.Ed. 2d 81 (2002)).
Here, the arresting officer, Trooper Ricardo Delgado, testified that "we received the call over our dispatch in reference to the - - an erratic driver." He indicated that the dispatcher described the vehicle as "a gray Chevy pick-up" with "like detail on the side of the pick-up . . . ." The dispatcher also provided a vehicle registration number, "UFM-72M." Trooper Delgado testified further that he: actually noticed the vehicle leaving the Dorchester Wawa. I followed it after . . .
I noticed it leaving the Wawa heading towards the Maurice River - - heading towards the bridge. I started noticing the vehicle swerve to the right - - to the left, I mean, over the center line. Then it went over to the fog line, which is the white line. And that's when I . . . initiated a motor vehicle stop, sir.
Trooper Charles Vicente testified that he was working as a general road trooper in Port Norris on the night of defendant's arrest when he was advised by dispatch to be on the lookout for a grey vehicle being occupied by a white male and that the vehicle was not maintaining its lanes of travel. He saw the vehicle and stopped it.
Defendant argues that whether the Golotta factors were satisfied must be measured by the testimony of Trooper Vicente, not the testimony of Trooper Delgado, who, despite his testimony otherwise, was not the officer who made the stop of defendant's vehicle. Trooper Delgado, who was the State's first witness, testified that when he first observed defendant's vehicle, it was travelling in the opposite direction. He indicated that he then made a U-turn, activated his overhead lights and video camera, and then stopped the vehicle approximately four-tenths of a mile later. He also testified that he observed defendant's vehicle cross over the center line by five feet and cross over the shoulder line by approximately two feet. When the videotape of Trooper Delgado's pursuit and stop of defendant's vehicle was played, however, it did not show defendant's vehicle weaving.
The municipal court judge found that Trooper Delgado's testimony, "while not precise," was "credible and accurate."
I will find that the defendant, even though the tape doesn't show the weaving over the center line, I will find that that is what the first attention to weaving was, and that Trooper Delgado's testimony is accurate and credible as to that. I happen to agree with the Prosecutor that my observation of what showed on the tape shows weaving over the fog line before the defendant pulled over.
I do not find the defendant traveled within the lane of travel during the part of the time it was on tape. And I find that probably, again you can't tell how far it was, but it certainly wasn't a very long distance on that tape. I will find that the testimony of Trooper Delgado as far as the weaving over the center line occurred probably in the first part of what I believed to be approximately four tenths of a mile of observation.
The Law Division judge accepted the municipal judge's credibility determination on this issue but also concluded that the police had independent grounds under Golotta for ...