On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 11-012.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Reisner.
On an appeal from the municipal court, the Law Division convicted defendant Walter C. Ciely of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant appeals the June 1, 2011 conviction, and we affirm.
Defendant's appeal primarily focuses on the portion of the June 1, 2011 Law Division order denying his motion to suppress evidence of his intoxication, discovered after a motor vehicle stop. Therefore, we begin with the record of the suppression hearing.
Freehold Police Officer Shaun Hobbs gave the following testimony, which both the municipal judge and the Law Division judge found credible. On the evening of September 3, 2010, Officer Hobbs was driving through the Freehold Raceway parking lot when he saw defendant taking beer bottles and other garbage out of his vehicle and putting those items on the surface of the parking lot.
Hobbs did not initially stop defendant, because he was not sure whether defendant, after removing the items from his car, was going to pick them up again or leave them as litter. Hobbs explained that defendant might have been "cleaning out his car" in an attempt to find something inside the car. But when defendant got back in his car, left the items on the ground, and started to drive away, Hobbs concluded that defendant was guilty of littering. He therefore drove his police vehicle to the exit to prevent defendant from driving out of the lot. When defendant reached the parking lot exit and saw Hobbs, he parked his vehicle and stepped out of the car. Hobbs ordered defendant to get back into the car, as a safety precaution. He then approached defendant and explained that he had observed him littering.
Hobbs issued defendant a summons citing the municipal ordinance against throwing litter from a vehicle, instead of the general ordinance against littering. At the hearing, the municipal judge upheld the State's objection to defense counsel's repeated efforts to cross-examine Hobbs about his understanding of the municipal ordinances. The judge ruled that the interpretation of the ordinances was a legal issue for the court to decide.
The municipal judge denied the suppression motion, concluding that the officer had a "reasonable articulable suspicion" that defendant had violated a municipal anti-littering ordinance, and therefore had lawful grounds to stop defendant's car.
On January 11, 2011, defendant entered a conditional plea of guilty to DWI, reserving the suppression issue for appeal. He admitted drinking five beers on the evening of the stop, and stipulated that an Alcotest revealed that his blood alcohol level was twice the legal limit.
On his appeal to the Law Division, defendant once again contended that Officer Hobbs had no legal right to stop his vehicle. However, Judge Francis J. Vernoia found that Hobbs had a "reasonable and articulable suspicion" that defendant had committed the municipal ordinance violation of littering, Freehold Borough Ordinance 8.28.020, at the time he intercepted defendant's car. The judge therefore found that the stop was lawful.
Relying on State v. Nishina, 175 N.J. 502 (2003), and State v. Hurtado, 113 N.J. 1 (1988) (reversing on Judge Skillman's dissenting opinion, 219 N.J. Super. 12, 23-28 (App. Div. 1987)), the judge reasoned that a police officer may properly conduct a brief investigatory stop to issue a summons for a municipal ordinance violation. The judge found no legal basis for defendant's argument that the officer must observe a suspect committing a traffic violation, as opposed to a non-traffic offense, before stopping a suspect's car. The judge also concluded it was irrelevant that Hobbs issued a ...