October 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MATT PINTER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 71-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2011 -
Before Judges Lihotz and Waugh.
Defendant Matt Pinter appeals from his conviction for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50. Although he pled guilty to the charge, he reserved his right to pursue an appeal based upon his argument that the police officer who issued the summons charging that offense made an illegal motor-vehicle stop. We affirm.
We discern the following facts and procedural history from the record.
Officer Frank Sutter of the East Brunswick Police Department (EBPD) was on patrol from 8:30 p.m. on March 12, 2010, until 7:00 a.m. the following morning. Sutter had been employed by the EBPD for five years, and had received training in DWI detection. He had previously arrested approximately 125 intoxicated drivers.
At approximately 3:00 a.m. on March 13, Sutter was driving in the southbound lane on Old Bridge Turnpike, a two-lane road. He observed Pinter's white Isuzu Trooper traveling in the northbound lane. Because Pinter was traveling "close to the yellow lines at a slow rate of speed," Sutter entered his license plate into his patrol car computer to do "a random lookup."
Sutter continued on Old Bridge Turnpike, made a right onto Main Street, and then turned into the driveway of the Bound Monroe School to wait for his computer to return information on Pinter's vehicle. A few seconds later, Sutter observed Pinter's Isuzu drive past on the westbound lane of Main Street, but did not observe anything remarkable about Pinter's driving. Nevertheless, based on the time of night and the fact that Pinter had changed direction, Sutter pulled out of his parking spot and began to follow Pinter's vehicle. He testified that he was suspicious "because drunk drivers get disoriented all the time."
Pinter made a right turn onto Old Stage Road, and Sutter followed. Sutter drove behind Pinter for about one-and-a-half to two miles. He testified that he followed Pinter for that distance so that he could observe Pinter's driving on a straight portion of the road because he "couldn't tell if he [was] weaving back and forth until [they] got to a straightaway."
Once they came to a straight section of roadway, Sutter observed Pinter's vehicle "weaving back and forth in its lane." However, he did not see the vehicle cross any lines. Sutter described Pinter's driving as "drifting back and forth," making an "S pattern." Using his own speedometer, Sutter estimated that Pinter was traveling between twenty-eight to thirty miles per hour (mph) in a thirty-five mph zone. Although it was raining, Sutter considered Pinter's speed to be "slow" for that area.
Sutter turned on his flashing lights and initiated a stop of Pinter's vehicle.*fn1 At the time of the stop, it was raining and there was "light traffic" on Old Stage Road, which is not a highway or freeway. After the arrival of a second officer, Pinter was arrested and escorted to the patrol car.*fn2 He was issued several summonses, including the one involved in this appeal.
Pinter moved to suppress all evidence resulting from the motor vehicle stop, arguing that there was no legal basis for Sutter to have stopped him. At the municipal court hearing, the judge found Sutter's testimony credible. The judge could not determine whether Pinter's vehicle appeared "to be traveling toward the left side of the lane" in the video from the recorder in Sutter's car. He also concluded that no motor-vehicle violations were shown in the video, but noted that the video did "not depict the entirety of [Sutter's] observations."
The judge concluded that Sutter had a reasonable and articulable suspicion sufficient to warrant stopping Pinter for further investigation. Consequently, he denied the motion to suppress. The judge subsequently accepted Pinter's guilty plea to the DWI charge, which included a reservation of the right to appeal the denial of the motion.
Pinter appealed to the Law Division, arguing that the weight of the evidence was contrary to the municipal judge's findings. After hearing oral argument, reviewing the municipal hearing transcript, and viewing the video of the motor vehicle stop, the Law Division judge made de novo findings of fact, in which he accorded due deference to the municipal judge's credibility findings. After stating the applicable law, the judge denied Pinter's motion to suppress:
[W]hile [Pinter] correctly argues N.J.S.A. 39:4-98 obliges a motorist to reduce his speed in inclement weather, the vehicle's reduced speed was not the only reason that Officer Sutter's attention was drawn to this vehicle. In addition to the slow speed, which may have been as many as [twelve] miles per hour below the speed limit, the vehicle was also making an S pattern, traveling very close to the yellow line on a wide stretch of road. Initially when Officer Sutter observed the vehicle traveling westbound on Main Street, he believed the driver was exhibiting signs of disorientation, which is one factor police officers look to with regard to drunk drivers. Given such observations, Officer Sutter deemed it necessary to follow the vehicle. As I said, he did not make an immediate determination. . . [W]hile he followed the vehicle, it continued to travel at a slow rate of speed for approximately two miles. And while the [c]court does appreciate that it was raining, the slow rate of speed is not the only issue. It continued. He observed the swerving or the S pattern, which indicated to Officer Sutter that the driver did not have full control over the vehicle even though it was traveling at a slow rate of speed.
Taking all of these facts together - and granted, it is not the strongest case. But we don't need the strongest case. What the [c]court is looking to is reasonable and articulable suspicion. And when you take all of these factors together, the driving well below the speed limit, vehicle quickly traveling in the opposite direction after a short period of time, which perhaps indicates disorientation, and the weaving back and forth and a wide road where there is plenty of room to drive and the vehicle is driving at a slow rate of speed, this
[c]court finds that Officer Sutter did have articulable and reasonable suspicion that a motor vehicle violation had been committed.
And as I said, the State need not prove that the motor vehicle infraction actually occurred to satisfy the standard.
The judge found that it was "inconsequential" that Pinter was not convicted of the other charges, reckless driving and delaying traffic. He concluded that he did not need to "address the applicability of the community caretaking function," upon which the municipal judge had also relied.*fn3 This appeal followed.
On appeal, Pinter raises the following issue:
THE LAW DIVISION'S FINDINGS OF LAW ARE CLEARLY MISTAKEN AND IN CONTRAVENTION OF WELL ESTABLISHED LEGAL PRECEDENT AND STATUTORY LAW.
A. MR. PINTER'S DRIVING CONTRASTED TO NEW JERSEY MOTOR VEHICLE CODE TITLE 39.
B. COMMUNITY CARETAKING AND ITS APPLICABILITY.
Our role in an appeal such as this one is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Pursuant to Rule 3:23-8(a), the Law Division judge makes a de novo determination on the record from the municipal court, but must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Nevertheless, our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
Under the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
In State v. Pineiro, 181 N.J. 13, 20 (2004), the Supreme Court defined a field inquiry as "the least intrusive encounter," occurring when a police officer approaches a person and asks if he or she is willing to answer some questions. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). During such a field inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).
An investigatory stop, unlike a field inquiry, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. The motor-vehicle stop in this case was a Terry stop, rather than a field inquiry.
The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
"To determine whether the State has shown a valid investigative detention requires a consideration of the totality of the circumstances." State v. Elders, 192 N.J. 224, 247 (2007); see also Privott, supra, 203 N.J. at 25-26. As the Supreme Court observed in Davis, supra, 104 N.J. at 505, [s]uch encounters are justified only if the evidence, when interpreted in an objectively reasonable manner, shows that the encounter was preceded by activity that would lead a reasonable police officer to have an articulable suspicion that criminal activity had occurred or would shortly occur. No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity. Such a determination can be made only through a sensitive appraisal of the circumstances in each case.
In evaluating the "totality of the circumstances," we "are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra, 149 N.J. at 11).
Pinter maintains that his driving "did not violate any New Jersey traffic or motor vehicle laws." Specifically, he argues there is no evidence in the record that his driving constituted delaying traffic, contrary to N.J.S.A. 39:4-56, or reckless driving, contrary to N.J.S.A. 39:4-96, for which offenses Sutter issued him summonses.
However, on a motion to suppress based upon an allegedly illegal motor-vehicle stop, the State is not required to prove that any violation actually occurred, State v. Locurto, 157 N.J. 463, 470 (1999), and the Law Division judge did not make any such finding in her de novo review. Instead, the judge found that "Officer Sutter did have articulable and reasonable suspicion that a motor vehicle violation had been committed." (Emphasis added.)
The judge's factual findings mirror those of the municipal judge and are supported by sufficient credible evidence in the record. Elders, supra, 192 N.J. at 243. She noted that Sutter had become suspicious when he first observed Pinter driving close to the line and that his suspicion increased when Pinter changed direction, but that he followed and continued to observe Pinter for approximately two miles before making the stop. Sutter did not make the stop until he had observed Pinter on a straight roadway for an extended period, at which time he observed the swerving in an "S pattern." We are satisfied that those facts, viewed in the totality of the circumstances and on an objective basis, support the judge's conclusion that Sutter had a "'articulable and reasonable suspicion'" when he stopped Pinter's vehicle. State v. Golotta, 178 N.J. 205, 212-13 (2003) (quoting Locurto, supra, 157 N.J. at 470).