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State v. Barrow

July 31, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN THOMAS BARROW, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-12-2786.

The opinion of the court was delivered by: Simonelli, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 26, 2009

Before Judges Carchman, Sabatino and Simonelli.

Following the denial of his motion to suppress, defendant Brian T. Barrow pled guilty to third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count one), and third-degree possession of CDS (methamphetamine), N.J.S.A. 2C:35-10a(1) (count two). The trial judge merged count two with count one and sentenced defendant pursuant to the plea agreement to a three-year period of probation concurrent to a five-year period of probation he was serving in New York. The judge also imposed the appropriate assessments, penalties and fees.

On appeal, defendant raises the following contentions:

POINT I

BECAUSE THE PROVISIONS OF [N.J.S.A. 39:3-74] DO NOT APPLY TO A PAIR OF MINIATURE BOXING GLOVES THAT ARE HANGING FROM THE REARVIEW MIRROR, THERE WAS NO OBJECTIVELY REASONABLE LEGAL BASIS FOR THE POLICE TO STOP MR. ROSATO'S VEHICLE ON OCTOBER 25, 2005, AND THE EVIDENCE OBTAINED FROM THAT UNLAWFUL STOP MUST BE SUPPRESSED.

A. The otherwise lawful operation of a vehicle with small items hanging from a rearview mirror does not violate the provisions of [N.J.S.A. 39:3-74] that prohibit the operation of a motor vehicle with items upon the front windshield or side windows, and a resulting traffic stop based on this premise is unlawful.

B. There is no reasonable articulable basis to believe that the operation of a motor vehicle with small items hanging from a rearview mirror unduly interferes with the driver's vision, in violation of the third paragraph of [N.J.S.A. 39:3-74], and a resulting traffic stop based on this premise is unlawful.

We reject these contentions and affirm.

The following facts are summarized from the record. On October 21, 2005 at 12:26 a.m., Officer Ted Wittke of the Hazlet Township Police Department was on routine patrol in uniform and in a marked patrol car. While stopped at a red traffic light on Holmdel Road, at its intersection with Route 35, the officer saw a small Acura sports car also stopped at the light facing him in the opposite direction. At some point, Wittke also saw two rounded objects hanging from the Acura's rearview mirror.

Wittke testified that he will stop a vehicle on a case-by-case basis for items hanging from a rearview mirror based on the size of the items, how far they hang down from the rearview mirror, and whether he believed they obstructed the driver's view. In this case, he decided to stop the Acura because the items hanging from the rearview mirror were larger than a Christmas tree air freshener, and were swaying and hanging approximately seven inches from the rearview mirror at the driver's eye level. The officer said that he "observed [the Acura] had items hanging from the [rearview] mirror, which [he] believe[d] obstructed the view of the driver." It was later discovered that the hanging items were boxing gloves measuring 31/2 inches high and 31/2 inches wide.*fn1

Wittke continued that when the light turned green, both vehicles turned onto Route 35 north, with the Acura in front of his patrol car. He activated his overhead lights, but the Acura did not immediately stop. Instead, it coasted to the shoulder, traveled approximately two hundred feet, and entered a parking lot. Wittke became uncomfortable with the time it took the driver to stop. He illuminated the inside of the Acura with a spotlight and saw the passenger, later identified as defendant, leaning forward with his shoulders moving. At this point, the officer ...


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