January 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PAUL R. BICKFORD, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2010
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 of his experience." State v. Arthur, 149 N.J. 1, 8 (1997) (citation and internal quotation marks omitted).
"An anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 127 (2002) (citation omitted). An anonymous tip based upon a "bare report of an unknown, unaccountable informant" lacks the "indicia of reliability." Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 260-61 (2000).
In evaluating whether a police officer had reasonable suspicion to stop a person, we have distinguished between anonymous tips and reports by concerned citizens or known persons. State v. Amelio, 197 N.J. 207, 212 (2008), cert. denied, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). That is, "different considerations obtain . . . when the informer is an ordinary citizen." State v. Davis, 104 N.J. 490, 506 (1986) ("There is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals."); see also State v. Stovall, 170 N.J. 346, 362 (2002) (noting that "[w]hen an informant is an ordinary citizen, New Jersey courts assume that the informant has sufficient veracity and require no further demonstration of reliability").
In State v. Lakomy, 126 N.J. Super. 430 (App. Div. 1974), the police were told that an employee of the company had seen the defendant with a gun. Id. at 432. The police located the defendant and patted him down. Ibid. In finding that the police had lawfully executed a stop and frisk, the court said that an ordinary citizen who reports a crime stands in a much different light than an informant because the ordinary citizen "acts with an intent to aid the police in law enforcement because of his concern for society or for his own safety." Id. at 436-37 (citation and internal quotation marks omitted).
In Amelio, supra, a telephone call to a police dispatcher by a seventeen-year-old reporting that her father was drunk and driving provided a constitutional basis to stop the defendant's vehicle. 197 N.J. at 209. The Court reasoned that because the citizen gave her name to the police and provided a basis of knowledge for her report, her information could be taken at face value irrespective of other evidence concerning her reliability, and there was no need to require more precise description than the word "drunk" to describe a commonly understood condition. Id. at 213-15.
In State v. Golotta, 178 N.J. 205 (2003), an anonymous 9-1-1 caller reported a pick-up truck being driven erratically. Id. at 209. In distinguishing a 9-1-1 caller from an unknown informant, the Court declared that a 9-1-1 caller "'place[d] his anonymity at risk' by virtue of using the 9-1-1 system" because the records required to be made of such calls "provide the police with an ability to trace the identity of the caller in a manner that enhances his reliability." Id. at 225-26. The Court analogized the information supplied by a 9-1-1 caller to a report offered by a citizen informant, finding that such a call "should not be 'viewed with the same degree of suspicion that applies to a tip by a confidential informant.'" Id. at 220 (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 390 (2000)). The Court concluded that "the 9-1-1 caller must provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller." Id. at 222 (citation and internal quotation marks omitted).
The Golotta Court also distinguished between an anonymous tip of erratic driving and a tip regarding a person with a gun:
Perhaps most important, here the officer was confronted with a risk of imminent danger to defendant and to the public, a circumstance that allowed the officer less corroboration time than if the tip had alleged that an individual standing passively on a street corner was carrying a concealed weapon.
Although unlawfully concealing a weapon poses a public-safety risk, driving a pickup truck erratically on a highway such as Route 206 is a more immediate threat. In such urgent situations, a police officer need not wait for corroboration that might be fatal to an innocent member of the public or to the driver himself. [Id. at 226.]
In the present case, contrary to defendant's argument, the police were not dealing with an anonymous faceless tip, but rather with a report from two concerned citizens who approached the officers with information of an immediate public safety concern. From their face-to-face encounter with these citizens, the police determined that they were sober, credible and reporting from first-hand observation and knowledge. The fact that the exigency of the situation did not allow for the witnesses' formal identification does not detract from either the reliability or veracity of their reportage since the two individuals did nothing to conceal their identities. On the contrary, by reason of their physical presence and personal involvement alone, these ordinary citizens "exposed [themselves] to reprimand or personal accountability." Lakomy, supra, 126 N.J. Super. at 436. These were important considerations in the evaluation of the reporters' credibility and reliability. Ibid. Moreover, the risk of imminent danger to both defendant and the public factored in the determination of the reasonableness of the vehicular stop in this instance. State v. Matthews, 398 N.J. Super. 551, 558-59 (App. Div.) (citing Golotta, supra, 178 N.J. at 226), certif. denied, 196 N.J. 344 (2008), cert. denied, 129 S. Ct. 1037, 173 L. Ed. 2d 480 (2009). Under the circumstances, we cannot fault the police for acting upon the information received, given its nature and source. We discern no constitutional violation here.
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