On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal Docket No. 09-014.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Payne.
On September 23, 2005 at 10:56 p.m., defendant, Nicholas Mellina, was stopped by Riverdale Police Officer John Barone for violation of N.J.S.A. 39:4-88b after what the officer characterized as an unsafe lane change. He was subsequently found to have been driving while intoxicated, and he was charged with violation of N.J.S.A. 39:4-50. After a considerable delay, on June 16, 2009, a Kinnelon municipal judge heard a motion to suppress the stop filed on defendant's behalf. The motion was denied. Defendant thereupon pled guilty to violating the two statutes. Following the plea, the municipal judge merged the violation of N.J.S.A. 39:4-88b into the violation of N.J.S.A. 39:4-50. He fined defendant pursuant to N.J.S.A. 39:4-50 in the amount of $256 and assessed appropriate fees and costs. Defendant's drivers license was suspended for three months. The sentence was stayed pending the outcome of defendant's appeal to the Superior Court from the denial of his suppression motion.
On appeal, the Law Division judge found that the conduct observed by Officer Barone on September 23, 2005 did not constitute a violation of N.J.S.A. 39:4-88b, because no evidence was presented that, by changing lanes as he did, defendant placed any drivers in danger. In reaching this conclusion, the judge relied on our decision in State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005). The matter was then remanded to the municipal court for proceedings consistent with the judge's determination. The State moved for leave to appeal, and we granted its motion.
Testimony at the municipal hearing disclosed that Officer Barone, driving an unmarked police car approximately fifty feet behind defendant in the left lane of a three-lane stretch of Route 23, observed him travel from the far left lane, across the middle lane, and into the far right lane in one fluid motion, without stopping in the middle lane. The officer did not testify that defendant's change of lanes had actually endangered any other motorists, and indeed stated that his car was the only car behind defendant's. Because Officer Barone was traveling in the left lane, defendant's lane change did not endanger him.
The officer charged defendant with violating N.J.S.A. 39:4-88b, which provides:
When a roadway has been divided into clearly marked lanes for traffic, drivers of vehicles shall obey the following regulations:
b. A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety.
In Officer Barone's opinion, in moving his car as he did, defendant had failed to ascertain that the movement could be safely made.
To justify the motor vehicle stop, Officer Barone was required to have "'an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997). To meet its burden of proof, "the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense." State v. Williamson, 138 N.J. 302, 304 (1994).
The "[r]reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002). The standard requires "'some minimal level of objective justification for making the stop.'" State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed. 2d 1, 10 (1989)). The test is "highly fact sensitive and, therefore, not readily, or even usefully, reduced to a neat set of legal rules." Ibid. (internal citation and quotation marks omitted). For analytical purposes... a stop founded on a suspected motor vehicle ...