On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-08-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
Defendant Robert Brembt appeals from his conviction for driving while intoxicated (DWI). He contends that his conviction should be overturned because he was stopped at a checkpoint that violated the standards set forth in State v. Kirk, 202 N.J. Super. 28 (App. Div. 1985). Finding no violation of those standards, we affirm.
On May 24, 2008, at 12:50 a.m., defendant was stopped at a DWI checkpoint located on Wyckoff Avenue in Waldwick Township. The officer who approached him observed that defendant's eyes were glassy and watery, saw two open cans of beer in the vehicle, and smelled an alcoholic beverage on defendant's breath. The officer then had defendant recite the alphabet, count backward, and perform other field sobriety tests. Based on defendant's performance, the officer concluded that defendant was intoxicated and arrested him. Defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50; driving while intoxicated in a school zone, N.J.S.A. 39:4-50(g)(1); possessing an open container in a motor vehicle, N.J.S.A. 39:4-51b; and reckless driving, N.J.S.A. 39:4-96.
Defendant filed a motion to suppress and argued that the DWI checkpoint did not meet the requirements set forth in State v. Kirk, and that there was no probable cause to stop him based on the officers' observations of his vehicle. After conducting an evidentiary hearing, the municipal court denied the motion.
Defendant thereafter entered into a conditional plea agreement, reserving his right to appeal the denial of his motion to suppress, and he pled guilty to driving while intoxicated. The other charges were dismissed. The municipal court sentenced defendant to forty-eight hours in the Intoxicated Driver Resource Center (IDRC) and thirty days of community service, suspended his driver's license and driver's registration for two years, and imposed a $500 fine and the requisite monetary costs and surcharges.
Defendant appealed to the Law Division, which conducted a de novo review and concluded that the checkpoint satisfied the requirements of State v. Kirk. It imposed the same sentence as the municipal court. That decision was memorialized in the order of August 6, 2009. Defendant appeals from the order, contending that the checkpoint does not meet the requirements of State v. Kirk.
While the trial court's review of an appeal from a municipal court decision is de novo, Rule 3:23-8(a), our review is more limited. "We do not re-weigh the evidence, but rather, determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Oliveri, 336 N.J. Super. 244, 252 (App. Div. 2001). However, with respect to questions of law, we give the conclusions of the trial court no deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A checkpoint or roadblock is considered a seizure within the meaning of the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey State Constitution. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed. 2d 660, 667 (1979); State v. Kirk, supra, 202 N.J. Super. at 35-37. In State v. Kirk, supra, applying New Jersey State constitutional law, we wrote that when stopping a vehicle at a checkpoint or roadblock, "[t]he police need not show probable cause to stop any individual driver but they must show some rational basis for deploying this type of intrusive law enforcement technique." 202 N.J. Super. at 56. To meet the requirements of the New Jersey Constitution, a roadblock "must be established for a specific need and to achieve a particular purpose at a specific place." State v. Carty, 170 N.J. 632, 652 (2002). In order to justify the intrusion of these stops, the State must demonstrate "some substantial benefit to the public from the road-block stops and some appropriate control of the discretion of the officer in the field." State v. Kirk, supra, 202 N.J. Super. at 55.
Further, "[s]imply sending out officers to set up road blocks when and where they felt like it, without any command participation as to site, time and duration, and not based on articulated and rational law enforcement needs" would not be likely to pass constitutional muster. Id. at 41.
If the road block was established by a command or supervisory authority and was carefully targeted to a designated area at a specified time and place based on data justifying the site selection for reasons of public safety and reasonably efficacious or productive law enforcement goals, the road block will likely pass constitutional muster. Other factors which enhanced judicial approval were (1) adequate warnings to avoid frightening the traveling public, (2) advance general publicity designed to deter drunken drivers from getting in cars in the first place, and (3) officially specified neutral and courteous procedures for the intercepting officers to follow when stopping drivers. [State v. Carty, supra, 170 N.J. at 652-53 (quoting State v. Kirk, supra, 202 N.J. Super. at 40-41).]
Defendant argues that the officers had impermissible discretion to determine which vehicles to stop and that the location of the checkpoint was not justified. The checkpoint in this case was implemented through a memorandum developed by the lieutenant in charge of the Traffic Bureau in the Waldwick Police Department and which was approved by the Bergen County Prosecutor. The memorandum allowed the officers to stop every third vehicle, but if traffic conditions permitted they could stop every vehicle. Defendant contends that allowing the officers to ...