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State of New Jersey v. Bruce Bocchino

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 12, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRUCE BOCCHINO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 07-09-R-T18.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2011

Before Judges Fisher and Fasciale.

In this appeal, defendant argues that the police unlawfully stopped his motor vehicle and that the evidence was insufficient to convict him of driving while intoxicated (DWI), N.J.S.A. 39:4-50. We reject these arguments and affirm.

Based on evidence found credible, it was determined that during the evening of January 24, 2007, a northbound dark-colored sport utility vehicle (SUV) swerved into the southbound lane of Route 206, nearly colliding with a Bedminster police officer's southbound police vehicle. The officer turned around and headed north on Route 206 in search of the SUV. Shortly thereafter, the officer pulled over a dark-colored SUV; that driver, however, was on her cellphone with a 9-1-1 operator, reporting a dark-colored pick-up style SUV with a license plate beginning with the letter "R" that was "all over the road" and driven by someone "drunk and impaired."

Armed with this additional information, as well as information provided by other law enforcement personnel, the officer continued north on Route 206 seeking a dark-colored pick-up style SUV with a license plate beginning with the letter "R" that he soon observed in an Elks Club parking lot. The officer shined a spotlight on the SUV and informed county dispatch. The officer did not speak to defendant and was still in his vehicle when he observed defendant grasp onto the vehicle for support as he exited his vehicle. Before the officer could say or do anything, defendant suddenly reentered his SUV and drove away. The officer activated his emergency lights and pursued.

Defendant eventually stopped his vehicle on Pottersville Road. When defendant exited his vehicle, the officer smelled a strong odor of alcohol and noticed defendant's watery and bloodshot eyes. In response to questioning, defendant admitted drinking four beers that night. Defendant then failed two preliminary field sobriety tests and struggled with a third. Defendant was arrested, searched, and charged with DWI, N.J.S.A. 39:4-50. Defendant's SUV was impounded; a later search uncovered what the police officer referred to in his testimony at trial as "an open twelve pack."

At the conclusion of a trial, the municipal judge found defendant guilty of DWI. Defendant filed an appeal, and the Law Division also found defendant guilty and, like the municipal judge, imposed among other things a fine and a three-month suspension of defendant's driving privileges.

Defendant appeals his conviction, arguing:

I. THE STOP AND SEARCH OF DEFENDANT AND HIS VEHICLE WAS IMPROPER AND IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

II. THE STATE FAILED TO PROVE THAT DEFENDANT WAS INTOXICATED BEYOND A REASONABLE DOUBT.

We reject defendant's arguments. The officer did not stop or detain defendant's SUV in the Elks Club parking lot, and the officer had a reasonable and articulable suspicion justifying the investigatory stop on Pottersville Road in light of his own observations when he was run off the road on Route 206, the information provided by the 9-1-1 caller, and the observations he made of defendant in the Elks Club parking lot. We are also satisfied that the record contained sufficient credible evidence of defendant's intoxication to support the DWI conviction.

I

Police may stop a vehicle if there is an "articulable and reasonable suspicion" that the vehicle or its driver has violated the law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); see also State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, __ U.S. __, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). Reasonable suspicion requires "'some minimal level of objective justification for making the stop.'" Id. at 212 (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). The officer "'must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" Ibid. (quoting State v. Arthur, 149 N.J. 1, 8 (1997)). The State has the burden of demonstrating by a preponderance of the evidence that it possessed sufficient facts to establish reasonable suspicion. Id. at 211. We conclude that the events that occurred in the Elks Club parking lot and on Pottersville Road were not impermissible police encounters and that defendant's motion to suppress was correctly denied.

A. The Elks Club parking lot

We first conclude that the event in the Elks Club parking lot did not constitute a stop of defendant's vehicle. In so holding, we note the confusion about whether the officer's presence in the Elks Club parking lot constituted a field inquiry. The facts found by the Law Division judge demonstrated that the officer did not conduct a field inquiry or any type of investigatory stop at that time. A field inquiry occurs when a police officer approaches and asks an individual to answer some questions, see State v. Pineiro, 181 N.J. 13, 20 (2004); it "may be conducted 'without grounds for suspicion,'" Nishina, supra, 175 N.J. at 510 (quoting State v. Rodriquez, 172 N.J. 117, 126 (2002)). In fact, the Fourth Amendment is not implicated in such a circumstance because a field inquiry is not a "'detention' in the constitutional sense." State v. Maryland, 167 N.J. 471, 483 (2001).

The officer's presence in the Elks Club parking lot was not a field inquiry. The officer never questioned or approached defendant; the officer simply pulled behind defendant's vehicle, which matched the description of the vehicle he was looking for, shined his spotlight on it, and relayed the information to dispatch. The officer remained in his vehicle and did not speak to defendant even after defendant exited his vehicle and began walking toward the officer. The event never evolved into a police encounter because defendant then returned to his vehicle and departed before the officer could exit his vehicle and speak to defendant.

Even if we were to conclude that the officer's activities on that occasion were impermissible, the only evidence obtained at that time was the officer's observations of defendant's unsteadiness on his feet when defendant exited his vehicle. The officer was entitled to be present in his vehicle in the Elks Club parking lot at that time, and he was entitled to make his observations of defendant's appearance.

B. Pottersville Road

The stop of defendant's vehicle on Pottersville Road was an investigatory stop -- and was valid -- because the officer had a reasonable and articulable suspicion to make the vehicle stop.

As we have already observed, police may stop a motor vehicle if there is an articulable and reasonable suspicion that the vehicle or its driver has violated the law, Prouse, supra, 440 U.S. at 663, 99 S. Ct. at 1401, 59 L. Ed. 2d at 673, a principle which requires "'some minimal level of objective justification . . . .'" Amelio, supra, 197 N.J. at 212 (quoting Nishina, supra, 175 N.J. at 511). In reviewing a judge's determination that there was a reasonable and articulable suspicion to justify the stop, we must ask "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

The State presented several facts that met this burden. First, the officer observed a dark-colored SUV cross over into his lane and almost collide with his patrol car. Second, a 9-1-1 caller reported an erratically driven dark-colored pick-up style SUV, with a license plate that began with the letter "R," traveling in the same direction as the vehicle observed by the officer. Information received from a 9-1-1 caller is generally considered reliable. Amelio, supra, 197 N.J. at 213--14. Third, the officer soon thereafter located a dark-colored pick-up style SUV with a license plate beginning with the letter "R," in the Elks Club parking lot. Fourth, the officer observed defendant grasp for support as he exited his vehicle. Fifth, defendant departed the Elks Club parking lot before the officer had a chance to speak with him and then did not pull over for a considerable period of time after the officer activated his emergency lights and siren in trying to effectuate a stop.

Although "flight alone does not create reasonable suspicion for a stop," flight "'in combination with other circumstances . . . may support [the] reasonable and articulable suspicion' required to justify a stop." State v. Williams, 410 N.J. Super. 549, 555 (App. Div. 2009) (quoting Pineiro, supra, 181 N.J. at 26), certif. denied, 201 N.J. 440 (2010). These factors established a reasonable and articulable suspicion for the officer to perform an investigatory stop on Pottersville Road.

Furthermore, the subsequent searches of defendant and his vehicle were valid as well. The search of defendant's person was a valid search incident to arrest. State v. Pena-Flores, 198 N.J. 6, 19 (2009). And the search of defendant's car was a valid inventory search. State v. Lark, 163 N.J. 294, 297 (2000).*fn1

II

We also reject defendant's argument that the evidence was insufficient to support his conviction. Intoxication may be proven "through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004); see also State v. Howard, 383 N.J. Super. 538, 548 (App. Div.), certif. denied, 187 N.J. 80 (2006). Proof of defendant's physical condition includes "slurred speech, loud and abrasive behavior, disheveled appearance, red and bloodshot eyes and strong odor of alcoholic beverage on [his] breath." State v. Kent, 391 N.J. Super. 352, 384 (App. Div. 2007).

There was sufficient credible evidence in the record to establish defendant's intoxication beyond a reasonable doubt. The officer observed defendant grasp for support in the Elks Club parking lot. Defendant was equally as unsteady on his feet after his vehicle was stopped on Pottersville Road. The officer smelled a strong odor of alcohol coming from defendant and noticed that defendant's eyes were watery and bloodshot. Defendant was unable to recite the alphabet, struggled during the counting test, and failed the finger dexterity test. Moreover, defendant was boisterous and inexplicably yelled "where is Steve?" during his interaction with the officer. Defendant also admitted drinking four beers that evening. These facts established intoxication beyond a reasonable doubt.

Affirmed.


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