December 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SUZANNE PODOLSKI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 77-2008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 17, 2009
Before Judges Parrillo and Ashrafi.
Defendant Suzanne Podolski was stopped for speeding and then arrested for disorderly conduct and interfering with a police officer, the latter a violation of a local ordinance. Subsequently, she pleaded guilty in the Borough of Spotswood Municipal Court to driving while intoxicated, refusing to take a breathalyzer test, and the local ordinance. Before her guilty pleas, her attorney moved orally to suppress evidence on the ground that her arrest was without probable cause. The municipal court held an evidentiary hearing and denied her motion. The Superior Court, Law Division, affirmed that ruling on de novo review. We affirm.
At the evidentiary hearing, the two arresting officers testified and defendant put in evidence a video recording made from a camera in the police car. Only minimal audio recording accompanied the video because no microphone outside the police car was recording sound.
At about 1:50 a.m. on March 23, 2008, Sergeant Keenan of the Spotswood Police Department was parked in a patrol car when he saw a blue Dodge Caravan speed past his location. He used his radar to clock the Caravan at fifty-one miles per hour in a thirty-five mile per hour zone. Sergeant Keenan pulled out behind the Caravan and accelerated until he was close enough to make a stop. He activated his overhead lights and the video camera inside his patrol car. The Caravan made a left turn onto Roosevelt Avenue, a residential side street, and came to a stop. Sergeant Keenan called in to headquarters to report the traffic stop and then stepped out of his patrol car to approach the Caravan and request credentials. Defendant was the driver and sole occupant of the Caravan. Sergeant Keenan testified as follows regarding what happened next:
She gave me credentials. I took them. She denied at that time the speeding violation, and I didn't want to argue with her. I just went back to my vehicle. And as I got back to my vehicle I was sitting there writing the summons and I noticed that the insurance card was expired. So, I got back out of my vehicle and re-approached her and advised her I needed to see a valid insurance card, at which time she started getting belligerent, she started yelling that I had no reason to stop her. She further said that she couldn't find the insurance card, that it must be on the kitchen table at home and - at which time she demanded me to allow her to go to her house, which she said was a couple of doors upwards, and I told her no, just remain in her vehicle.
A few minutes after the stop, Detective Schapley arrived in a second police car as backup. At the suppression hearing, Sergeant Keenan continued his testimony regarding events after Detective Schapley's arrival:
Q: And while at the scene with the defendant did at any time during that stop, were you presented with an insurance card that covered March 23rd, 2008?
A: No ma'am.
Q: Okay. You indicated that the defendant had requested time to - what was it - go home and get the insurance card?
A: She kept insisting that she lived two doors up and that she should be able - allowed to leave the scene and go to her house and then get the card. She also around that time mentioned that her ex-husband was a police officer and she, you know, in order I guess to influence me to allow her to leave the scene. For officer safety I wouldn't let that happen.
Q: Would that - would such a procedure be consistent with standard procedures in terms of documents?
A: No, ma'am.
Q: Why would that be?
A: Officer safety. We don't know what the person's going to do if we allow them to leave the scene and be out of our control. They could come back with a weapon or something, do harm to the officers.
Q: So, what would procedure dictate if you are not presented with valid documents at the scene?
A: We issue the summons and have them appear in court.
Q: And is that what you, in fact, did with respect to the insurance card?
A: Yes, ma'am, we issued a summons for an uninsured motor vehicle.
Q: Okay, after you had the conversation with the defendant regarding the insurance card what did you do next?
A: I went back to my vehicle, I issued the summonses. As I was writing the summonses the suspect got out her vehicle and started carrying on.
Q: What do you mean by carrying on?
A: Screaming, yelling at the officers, we didn't know what we were doing. I don't remember exactly what she was saying, but she was trying to - she was actually trying to belittle us, demanding that I should let her go to her house. And we told her several times - myself and Patrolman Schapley told her - Detective Schapley told her several times get back in her vehicle or face arrest.
Q: Okay, and at what point did you notice the defendant exit her vehicle?
A: I heard the door open, and then I heard her screaming and yelling, so I looked up, and she was carrying on, flailing her hands up in the air, causing a disturbance, at which time I got out of my vehicle, started walking towards her, and we advised her several times get back in the vehicle. And she wouldn't do it.
I believe Detective Schapley and myself simultaneously said, "Well, you're under arrest now," at which time we placed her under arrest.
Q: Okay, and what was the reason that Ms. Podolski was being placed under arrest at that time?
A: Creating a disturbance, failure to follow a lawful order.
Q: Was there anything about that particular situation at that particular point that you felt was either hazardous to either her safety or you own?
A: Well, yes, ma'am. During the stop at least one vehicle came up the roadway. She was creating such a disturbance that I thought it was going to escalate. And the way she was carrying on, you know, she wasn't going to accept the summons, and I felt it was going to escalate to the point where she might actually do an attack on the officers.
Detective Schapley also testified at the suppression hearing about the circumstances of defendant's arrest:
Q: Did there come a point in time when Sergeant Keenan exited the vehicle?
Q: Okay, could you tell the Court what you observed when that happened?
A: When Sergeant Keenan opened his door to get out I observed the passenger - or the driver of the other vehicle also get out of her car.
Q: That person - how far away would you say you were from that at the time?
A: I would say I was approximately - I was adjacent to Sergeant Keenan, a little bit behind him, but approximately thirty feet. I don't know.
Q: Okay. You said the driver of the vehicle that was stopped got out?
Q: Okay, and then what happened?
A: When people get out of the car we automatically tell them to get back in their car for safety purposes, both ours and theirs. But she was yelling something about an insurance card.
Q: Okay, you could hear -
Q: - hear from where you are?
A: Yes. Um-hmm.
Q: Are you still in your car, or did you exit your car?
A: As soon as she gets out of her car, I get out of my car, also. But I'm standing by my door while Sergeant Keenan's directing her to get back in the car.
Q: Okay. And you could hear the conversation from that point?
Q: Okay, and what did you observe happen next?
A: Sergeant Keenan ordered her to get back in the car. He started moving closer to her. She continued to stay out of the vehicle and speak about an insurance card, "I have my insurance card. This is ridiculous. My house is right there across the street. Can I just go get it?"
As he approached her he kept ordering her back to the car. As he got closer I followed him in and got closer, too.
Q: At any point during that conversation did the individual who was the driver of that car get back into their car?
Q: Did there come a point in time when you did say anything?
A: Yeah, when we get really close I asked her to get back in the car, too. Just get back in the car.
Q: Did she comply with your instructions?
Q: Approximately how many times do you think that individual was told to get back into their vehicle?
A: I would say approximately three times by Sergeant Keenan and once or twice by me.
Q: Did you notice anything about that individual's demeanor?
A: She just wasn't listening. She was trying to overtalk everything and say, you know, "This is ridiculous," and so forth. Wasn't listening to our commands.
Q: Did there come a point in time when you got closer to the situation?
Q: Okay, when was that?
A: When we made progress up to her location we ordered her back in her car. She didn't go, and I think that's when Sergeant Keenan, we placed her under arrest.
Q: Okay, and what would Ms. - what was that individual being placed under arrest for?
A: Either interference with a borough officer for not following our commands or you could even do disorderly conduct or something like that, so -
Q: What would disorderly conduct entail at that point? What would you consider to be disorderly conduct?
A: Well, she was very loud, okay, based on the location and the time of night. So -
Q: Did you make any observations with respect to that individual and what they were doing physically with their body at that point? As far as making any gestures or anything like that.
A: She was waving her arms up and down, but - while she was talking. Defendant called no witnesses but presented the video recording in evidence. With agreement of counsel, the municipal judge took a recess to view the recording on the equipment in the police department. After the recess, the municipal judge stated: "[T]he record will reflect that I did see the video marked D-2. They set it up on the computer, they left me alone. I did not discuss what was in that video with anyone." In summation, defense counsel argued that the recording shows defendant was not disorderly. He cited several New Jersey cases to support his argument that the actions of his client did not amount to disorderly conduct and the police were mistaken in finding probable cause to arrest her on that charge.
The municipal judge made the following relevant findings regarding his observations from the recording:
It's 2 o'clock in the morning. They're on a residential street - now, I'm using 2 o'clock roughly. I mean it was 1:50 -something if I recall, and they're in a residential neighborhood.
At one point the defendant moves her car after she stops, after she's pulled over. While the officer is writing the ticket she moves her car. And I hear Keenan say, "Where is she going now?"
Be that as it may, he goes back, to the car. He says to her, "You've got the wrong insurance card." She says whatever she says. He goes back to his car again to write the ticket. And I hear Keenan say, "I'm not intimidated by her. Thank goodness it's all on videotape." And I agree. I think it is a good thing that it was all on videotape, because we clearly see what happens.
There comes a point in time when she's told to get back into the car. She doesn't get into the car. She points evidently to her house. She's pointing across the street, as you indicate.
And then at that point they tell her to get back in the car, and she continues to point. And then comes the thing that I think is the most telling. Her arms are crossed, she's not getting back into the car. Now, if you're a police officer and you're out at 2 o'clock in the morning and you're in a residential area and you have a defendant that you've stopped for a violation of the law who refuses to follow the direction of the officer and continuously points to her house, I assume, and continuously is loud, that at that point the officer does have a reasonable and articulable suspicion to make that arrest. And that's what he does.
The judge mistakenly referred to "reasonable and articulable suspicion" to make the arrest, but clearly meant that the police had probable cause to arrest defendant. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed. 2d 142, 145 (1964) (probable cause required for arrest); see also Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 673 (1979) (articulable and reasonable suspicion of violation of law required for motor vehicle stop); State v. Locurto, 157 N.J. 463, 470 (1999) (same).
At the de novo hearing in the Law Division, defense counsel presented the police recording and asked the judge to view it on the record. The judge could not do so, even if defense counsel's request were appropriate, because counsel had not given notice that he intended to play a video recording in the courtroom and no equipment was immediately available. The judge suggested that he could view the recording on his computer in chambers. The Assistant Prosecutor said he was not aware that a recording would be offered and had not previously seen it. The judge invited the Assistant Prosecutor to join him in chambers to view the recording. Defense counsel did not object or make any other request. The transcript does not reveal whether defense counsel also attended the viewing in chambers. Nothing suggests that he was prevented from doing so. After viewing the recording, the judge found that the police had acted properly in arresting defendant after she refused to follow their lawful order to stay in her car.
Defendant raises the following issues on appeal:
POINT I THE OFFICER'S TESTIMONY AS TO DEFENDANT'S CONDUCT IS COMPLETELY AT ODDS WITH HER ACTUAL BEHAVIOR CAPTURED ON VIDEO/AUDIO. POINT II EVEN UNDER THE OFFICERS' VERSION OF EVENTS DEFENDANT'S CONDUCT DID NOT FIT THE STATUTE.
Because of the recording, we have better insight into the facts than only a written appellate record, but on appeal we do not review evidence de novo. We must still "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). As reminder to counsel and the parties, we state in detail the function of an appellate court:
The aim of the review at the outset is... to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.... When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal. That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect.
But if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction,... then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.... [T]hat which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways--from manifest lack of inherently credible evidence to support the finding, obvious overlooking or undervaluation of crucial evidence, a clearly unjust result, and many others.
[Ibid. (quoting Johnson, supra, 42 N.J. at 162).]
Our review of the video recording is entirely consistent with the municipal judge's description and findings quoted in this opinion. We conclude, as did the judges below, that the police had probable cause to arrest defendant for disorderly conduct.
The disorderly conduct statute, N.J.S.A. 2C:33-2a, provides:
Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.
Defendant contends that nothing she did can be equated with fighting, threatening or violent or tumultuous behavior, and that she could not cause a hazardous or physically dangerous condition when there was no one on the street except her and the police officers. She argues that our opinion in State v. Stampone, 341 N.J. Super. 247 (App. Div. 2001), is factually on point with this case and establishes that disobeying the order of a police officer is not disorderly conduct.
In Stampone, we reversed the defendant's conviction for disorderly conduct in failing to cooperate with the police at a traffic stop. We concluded that the defendant's slamming his car door and almost striking the police officer's arm was not sufficient evidence of tumultuous behavior within the meaning of the quoted statute. Id. at 254-55. We also concluded that the surrounding circumstances, the incident occurring in a safe area in the late afternoon, "had no capacity to cause public inconvenience, public annoyance or public alarm." Id. at 255.
No evidence had been presented of passers-by noticing the incident, and there was nothing "inherent in defendant's conduct as to make it likely that his colloquy with [the officer] would cause public inconvenience, annoyance or alarm." Ibid.
In contrast, defendant's conduct in this case was more persistent and potentially disruptive to public safety than the conduct of the defendant described in Stampone. Here, defendant refused to return to her car during the course of a police stop and investigation in the early morning hours. Although different observers might disagree in describing defendant's arm movements and other actions as seen on the video, there is no question that she was demonstrative and argumentative with the police. She relentlessly insisted that she be permitted to go home to get her insurance card, which for good reasons the police could not allow.
The absence of outside voices on the recording leaves some doubt about whether she was screaming, as Sergeant Keenan testified, but her gestures and demeanor demonstrated contentious disputing of the officers' directives that was consistent with using at least a loud voice. Although no passersby or members of the public can be seen in the recording, loud arguing in the street at 2:00 a.m. in a residential neighborhood amounts to disruptive behavior that is likely to cause at least a risk of public inconvenience, annoyance, and alarm among the residents in their homes. The police had probable cause to conclude that defendant's conduct was creating a hazardous or physically dangerous condition.
Defendant also fails to distinguish between evidence establishing probable cause to make an arrest and sufficient evidence to support a conviction for disorderly conduct. See Brinegar v. United States, 338 U.S. 160, 172-73, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, 1889 (1949). To make an arrest, the police do not need proof beyond a reasonable doubt; they need probable cause, Beck, supra, 379 U.S. at 91, 85 S.Ct. at 225, 13 L.Ed. 2d at 145, which is less than evidence needed to prove guilt, see United States v. Ventresca, 380 U.S. 102, 107-08, 85 S.Ct. 741, 745, 13 L.Ed. 2d 684, 688 (1965). Probable cause "is more than mere naked suspicion" but "less than legal evidence necessary to convict." State v. Mark, 46 N.J. 262, 271 (1966). It is "a 'well grounded' suspicion that a crime has been or is being committed." State v. Waltz, 61 N.J. 83, 87 (1972) (quoting State v. Burnett, 42 N.J. 377, 387 (1964)). Our holding in Stampone, supra, 341 N.J. Super. 247, that there was insufficient evidence to convict the defendant of disorderly conduct does not mean there was no probable cause to arrest defendant in this case.
We conclude that sufficient credible evidence in the record supports the judges' findings and conclusions that the police had probable cause to arrest defendant for disorderly conduct.
We affirm the rulings denying defendant's motion to suppress evidence obtained after her arrest.
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