On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 76-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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 ...