On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 21-09-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Yannotti.
Following denial of his motion to suppress, defendant Paul Bickford entered a conditional plea of guilty to driving while intoxicated, N.J.S.A. 39:4-50, for which the municipal court sentenced him to a seven-month loss of his driver's license, a thirty-day suspended jail term, and appropriate fines, fees and costs. On de novo review, the Law Division upheld the municipal court's decision, modifying defendant's sentence only by vacating the suspended thirty-day jail term. On appeal, defendant argues that his motor vehicle stop was based on an anonymous, uncorroborated tip and was therefore unconstitutional, as lacking in reasonable suspicion. We disagree, and affirm.
According to proofs adduced at the suppression hearing, on July 16, 2009 at around 7:30 p.m., Ocean City Police Officers Brendan Gheen and Michael Kenny were patrolling the shore resort's commercial district near the intersection of Asbury Avenue and 9th Street. It was the summer season and there was a substantial amount of pedestrian, bicycle and motor vehicle traffic in the area. Two men, approximately forty years old, flagged down the officers' marked patrol car on Asbury Avenue and reported that a man driving a black sport utility vehicle (SUV) with tinted windows was intoxicated. The men explained that they had just been in a verbal argument with the driver over a parking space and that he was yelling profanities at them. They pointed to the SUV, which was stopped at a red light at the intersection of Asbury Avenue and 9th Street. Deeming the men both credible and sober and reporting out of concern for the safety of others, the officers pulled behind the SUV and followed the vehicle as it turned left onto 9th Street, a right onto Bay Avenue and then a right onto 8th Street. Without observing any traffic violations, the officers stopped the vehicle on 8th Street, and defendant, who was operating the vehicle, was eventually arrested for driving while intoxicated. The officers returned to Asbury Avenue, but the two men who had reported the incident could not be located.
At the close of evidence, the municipal court judge denied defendant's motion to suppress, finding the police had reasonable suspicion, based on the report of the two concerned citizens, to stop defendant's vehicle. The judge reasoned:
What if somebody called 911 and said that they were almost hit by a motor vehicle in a crosswalk and that this is the vehicle and this is the license number? An investigation would have ensued for that. This, in many respects, rises to a higher level of reasonable and articulable suspicion. In this particular case, I believe that the officer did have a reasonable suspicion. I believe that, as in the case of State v. Golotta, [178 N.J. 205 (2003),] which is a 911 call case that there was an erratic driver, the fact that there was no erratic driving observed is of no consequence when the report was not about erratic driving, it was about an intoxicated man behind a steering wheel of a vehicle.
Just the exigency of the circumstances required the officer to act on the tip instantaneously instead of taking down their information.
On its de novo review, the Law Division agreed that the vehicular stop was constitutional as predicated on reasonable suspicion that defendant was intoxicated:
In situations where police receive an anonymous tip, . . . the tip, standing alone, is not sufficient to establish a reasonable, articulable suspicion of criminal activity [as] set forth in State v. Amelio [, 197 N.J. 207 (2008),] and in State v. Rodriguez [, 172 N.J. 117 (2002)]. Also in State v. Matthews [, 398 N.J. Super. 551 (App. Div. 2008)]. The anonymous informant's veracity, liability [sic] and basis of knowledge are relevant in determining the value of his report. As set forth in Amelio, there is an assumption grounded in common experience that such a person regarded as a cooperative member of the general public would, in the ordinary course of events, have no ties or connections with the underworld or to criminal element. He would be expected to be motivated by factors which are consistent with law enforcement goals. Consequently, an individual of this kind may be regarded as trustworthy, and information imparted by him to a police officer concerning a criminal event would not especially entail further explanation or verification of his personal credibility or reliability before appropriate police action is taken. And that is set forth in State v. Lakomy, [126 N.J. Super. 430 (App. Div. 1974)]. Having said that and the case law that I believe is relevant and binding and appropriate to be applied in this case, I am persuaded that the relevant testimony at the suppression hearing, that the two men were not anonymous, and were not anonymous then, and they're not anonymous today. The two men presented themselves face to face with the police and identified Mr. Bickford's vehicle by pointing directly at it. Although there was not enough time to record their personal information and were not trying to hide their identities, unlike individuals who call anonymously on 9-1-1.
On appeal, defendant argues, as he did below, that because the tip given by unidentified passersby in this case was anonymous and uncorroborated, the police lacked reasonable suspicion to stop his vehicle. We disagree.
A police officer may stop a motor vehicle where there is a reasonable or articulable suspicion that a motor vehicle violation had occurred. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Carter, 235 N.J. Super. 232, 237 (App. Div. 1989); see also State v. Griffin, 84 N.J. Super. 508, 516-17 (App. Div. 1964) (noting that a police officer is justified in stopping a motor vehicle operated dangerously or suspiciously even when no motor express vehicle violation has occurred). The burden is on the State to demonstrate by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion. State v. Pineiro, 181 N.J. 13, 19-20 (2004).
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)). "When determining if the [police] officer's actions were reasonable," the court must consider the reasonable inferences that the police officer is entitled to draw "in light ...