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State v. Whitebread

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DENISE WHITEBREAD, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 76-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 2010

Before Judges Lisa and Baxter.

Defendant Denise Whitebread appeals from her January 2, 2009 conviction in the Law Division, following a trial de novo, on a charge of driving while intoxicated, N.J.S.A. 39:4-50. We disagree with her contention that the police-citizen encounter that occurred here was an automobile stop which required a reasonable and articulable suspicion of criminal activity. We likewise reject defendant's contention that a reversal of her conviction is warranted because the State failed to provide her with the dispatch tapes she requested in discovery. We affirm.

I.

At approximately 11:30 p.m. on December 4, 2007, Lumberton Township police officer Bryan Norcross received a radio call from a Burlington County Central Communications dispatcher directing him to investigate a report of a vehicle that had been lingering and circling in the area of Sunnybrook Drive for a protracted period of time. In particular, the dispatcher informed Norcross that there was an older Chevy Cavalier, blue in color, with its front covered in white primer, "that had been lingering in the area for over an hour."

When Norcross and another officer arrived at Sunnybrook Drive and Eayrestown Road, they observed a vehicle matching that description parked "approximately five to ten feet" before the stop sign. Norcross approached the parked vehicle and asked the driver "what her reason was for being in the area." The driver, defendant, responded that "she was waiting for a friend by the name of 'G.,'" but she was unable to supply Norcross with his last name. During Norcross's conversation with defendant, he detected a strong odor of an alcoholic beverage emanating from her breath. He charged her with DWI.

On cross-examination, Norcross acknowledged that he had not observed any motor vehicle violation, nor had he observed anything in defendant's appearance or demeanor that would cause him to suspect that she was in any distress or required any assistance. Norcross also testified that a vehicle lingering in the area for an hour, which is what the anonymous caller had described, was suspicious because the area in question was "a known drug area" where "people linger . . . to purchase drugs." When asked whether such information was "relevant to the reason why [he] stopped [defendant]," Norcross answered "yes."

During Norcross's testimony, defendant moved to bar Norcross from referring to the report he received from Burlington County Central Communications dispatch because the recording of the dispatch had not been provided to her in discovery. The municipal court judge overruled defendant's objection because the Lumberton Township municipal prosecutor did not have "dominion and control" over the dispatch logs or recordings from Burlington County Central Communications.*fn1

At the conclusion of the testimony, the municipal court judge denied defendant's motion to suppress. The judge reasoned that circling for over an hour in a neighborhood known to be a location where illicit drugs are sold was "suspicious behavior" that justified the officer's "investigatory activity." The judge also held that when Officer Norcross found defendant's vehicle parked in that area, his suspicions of criminal activity were justifiably increased, thus authorizing Norcross to approach defendant's vehicle to make an inquiry. After the judge denied defendant's motion to suppress, she entered a conditional plea of guilty to the charge of DWI, reserving only her right to challenge on appeal the denial of her motion to suppress. Notably, defendant did not reserve the right to argue before the Law Division that the municipal court judge erred by overruling her motion to strike portions of Norcross's testimony based upon the purported discovery violation involving the State's failure to produce the Burlington County dispatch tapes.

In the Law Division, at the beginning of the trial de novo, Judge Harold B. Wells, III asked defendant if the motion to suppress was "the only issue before [the court] this morning," to which defense counsel answered "[t]hat's correct, your honor." Defendant made no mention of the alleged discovery violation that she had raised in the municipal court.

In his findings of fact, Judge Wells specifically observed that the encounter between police and defendant was not a motor vehicle stop because defendant's vehicle was parked, and already stopped, when Norcross and the other officer approached it. Judge Wells concluded that police were entitled to approach the vehicle to inquire why the car was "w[a]ndering in a neighborhood late at night, a neighborhood which the police [knew] had a high incidence of drug arrests." Judge Wells reasoned that when police arrived at the scene and found a vehicle that precisely matched the description provided by the anonymous caller, "at that point, . . . the anonymous tip and the actual observations of the police dovetail almost perfectly."

Judge Wells concluded that a report of a vehicle circling in a known drug area for over an hour authorized police to approach the stopped vehicle and question the occupant about her presence in the area. He also held that the State was not required to provide any further justification for the approach to defendant's vehicle. Accordingly, Judge Wells denied defendant's motion to suppress. After issuing his ruling, the judge asked defense counsel whether there were "any other issues to be raised in this case," to which counsel answered "[n]o, Judge." Thus, as is evident, defendant did not raise, in the Law Division, the alleged discovery violation.

On appeal, defendant presents the following claims:

I. REVERSAL IS REQUIRED BECAUSE THE SUPPRESSED EVIDENCE MIGHT HAVE AFFECTED THE OUTCOME OF THE TRIAL

II. [THE] STOP OF DEFENDANT'S AUTO WAS ARBITRARY, RANDOM AND WHOLLY WITHOUT JUSTIFICATION

III. A STOP BASED SOLELY ON A CITIZEN'S PHONE CALL IS PROPER ONLY IF THE CALLER HAS ASSERTED THAT [AN] ACTUAL MOTOR VEHICLE VIOLATION, WHICH POSES AN IMMINENT THREAT TO THE PUBLIC, HAS OCCURRED

IV. THIS STOP DOES NOT FALL WITHIN THE "COMMUNITY CARETAKING FUNCTION" OF THE POLICE.

II.

In Point I, defendant maintains that her conviction should be reversed because the "suppressed evidence," had it been provided, could have affected "the outcome of the trial." Defendant's term "suppressed evidence" is actually a reference to the alleged discovery violation about which defendant complained in the municipal court. She did not raise that issue in the Law Division, as Judge Wells twice confirmed. An argument not raised in the trial court cannot be pressed on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

III.

We address defendant's next three points in tandem, because all three address the validity of what defendant characterizes as a "stop." Defendant maintains that the "stop" of her vehicle was both arbitrary and impermissible because police failed to corroborate the information allegedly conveyed by the anonymous tipster. She also asserts that the Law Division erred because the stop in question cannot properly be characterized as an exercise of the community caretaking function approved by the court in State v. Goetaski, 209 N.J. Super. 362 (App. Div), certif. denied, 104 N.J. 458 (1986).

While we agree with defendant that a stop by police of a moving motor vehicle requires a reasonable and articulable suspicion of either criminal activity or a motor vehicle violation,*fn2 "[b]rief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles." State v. Harris, 384 N.J. Super. 29, 45 (App. Div.), certif. denied, 188 N.J. 357 (2006).

As we held in Harris, "'law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen . . . .'" Ibid. (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed. 2d 229, 236 (1983) (plurality opinion)). "'It is well-settled that the police may arrest only if they have probable cause; may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds for suspicion.'" State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.) (citation omitted), certif. denied, 172 N.J. 178 (2002). Thus, mere inquiries of a person who is already stopped require no constitutional justification so long as the encounter is brief and non-intrusive. Ibid.

In Sirianni, police approached the defendant's vehicle, which was parked at the curb in front of a home where a homicide suspect lived and where the occupant of the vehicle had warily observed their arrival. Id. at 385. Police asked the defendant for his license and registration, at which time he pointed to a black bag on the front passenger's seat. Id. at 386. Upon opening it, police discovered marijuana and LSD.

We upheld the trial judge's denial of the defendant's motion to suppress, reasoning that police were justified in approaching the defendant to conduct an inquiry. Id. at 391. Because the encounter "involved a minimal degree of intrusion, . . . [which] never extended beyond a mere request for identification[,] . . . [and] there were no restraints on defendant's movement and nothing in the encounter conveyed to defendant that he was not free to refuse the officers' request," we held that the "approach was non-offensive." Id. at 392. "No demands or orders were issued. Nor was the police conduct overbearing or harassing." Ibid. For that reason, we held that a reasonable and articulable suspicion was not required. Ibid.

An encounter will be deemed "non-intrusive," requiring no constitutional justification, so long as the officer asks his questions "in a conversational manner," without "mak[ing] demands or issu[ing] orders, and if [the] questions [are] not overbearing or harassing in nature." State v. Davis, 104 N.J. 490, 497 n.6 (1986). Only where the questions are posed in an "authoritative" tone that "presuppose[s] criminal activity or [where the questions] are otherwise indicative of criminal suspicion, thus making the suspect aware he is the focus of a particularized investigation," will reasonable and articulable suspicion be required. Sirianni, supra, 347 N.J. Super. at 389.

Here, we are satisfied, as was Judge Wells, that the brief, non-confrontational encounter between Officer Norcross and defendant does not offend the Fourth Amendment prohibition against unreasonable searches and seizures. The encounter between Norcross and defendant involved the same "minimal degree of intrusion," id. at 392, that it did in Sirianni. In a nonconfrontational manner, Norcross asked defendant merely to explain why she was in the area. He posed only a single question and there were no restraints on her movement and nothing would have conveyed to her that she was not free to refuse to answer Norcross's question. The questioning was not overbearing, harassing or accusatory. For constitutional purposes, it qualifies as an inquiry, for which no justification is required. Ibid. We thus conclude that Judge Wells properly denied defendant's motion to suppress.*fn3

Defendant's reliance upon State v. Costa, 327 N.J. Super. 22 (App. Div. 1999), is misplaced. There, we held that the community caretaking function did not justify an investigation of two men who were sitting in a parking lot for an hour at a time when the tavern was open for business, other parked cars were present, no traffic violation or abnormal driving was observed, and there was no report that the men might be in need of police assistance. Id. at 30. In Costa, the defendant's behavior and the surrounding circumstances were entirely innocuous. This is not such a case. Defendant was sitting in a parked car and had been circling the area, known for drug activity, for over an hour. The circumstances here are thus entirely distinguishable from the innocent circumstances presented in Costa.

Affirmed.


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