March 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WALTER C. CIELY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 28, 2012
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 summons citing the wrong littering ordinance, because Hobbs made factual observations that would support a violation of another municipal littering ordinance.
The judge also found that defendant had ample opportunity to cross-examine Hobbs at the municipal court hearing, and that Hobbs' interpretation of the municipal ordinances was a legal issue not properly the subject of cross-examination.
On this appeal defendant once again challenges the legality of the traffic stop. He presents the following point for our consideration:
THE POLICE OFFICER LACKED A REASONABLE AND ARTICULABLE SUSPICION TO BELIEVE THAT A VIOLATION OF LAW HAD OCCURRED AT THE TIME THAT HE EFFECTUATED THE SUBJECT MOTOR VEHICLE STOP AND AS A RESULT THEREOF, THE DEFENSE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED AND ALL EVIDENCE SEIZED FOLLOWING THE ILLEGAL STOP OF THE DEFENDANT'S VEHICLE SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE AND THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING SAME.
We will uphold the Law Division judge's ruling on a suppression motion so long as the judge's factual findings are supported by substantial credible evidence and the judge has properly applied the law to the facts found. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012); State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011); State v. Elders, 192 N.J. 224, 245 (2007). Having reviewed the record, we find no basis to disturb Judge Vernoia's well-reasoned decision. We affirm substantially for the reasons stated in his oral opinion placed on the record on June 1, 2011. Defendant's appellate contentions are without sufficient merit to warrant discussion in a written opinion, beyond the following brief comments. R. 2:11-3(e)(2).
Defendant argues that the officer needed to suspect him of a motor vehicle violation before stopping his car. However, he cites no cases that support that proposition. State v. Locurto, 157 N.J. 463 (1999), which defendant cites, happened to involve a stop based on traffic violations; it does not stand for the proposition that the police can only make a motor vehicle stop based on observing a traffic violation. It is clear from Nishina, supra, 175 N.J. at 513-14, and Hurtado, supra, 219 N.J. Super. at 23, that a police officer may lawfully conduct an investigative detention or "Terry stop"*fn1 based on observing a suspect violating a municipal ordinance. See also State in the Interest of R.M., 408 N.J. Super. 304, 310-11 (App. Div. 2009). Nothing in those cases suggests that a police officer, having observed a municipal ordinance violation, must stand by helplessly while the suspect drives away from the scene of the offense. In this case, although defendant had not committed a traffic violation, Hobbs had clear evidence, even beyond probable cause, to believe defendant was guilty of littering. He was entitled to stop and detain defendant long enough to confirm his identity and issue him a summons. See Hurtado, supra, 219 N.J. Super. at 23.
Moreover, the facts in this case, as the judge found them, do not indicate that Hobbs used the municipal violation as a pretext for a motor vehicle stop. It was not until defendant started driving away from the scene that Hobbs had clear evidence that defendant was leaving the beer bottles in the parking lot, thus committing a littering offense. Prior to that time, Hobbs believed that defendant might just be searching through his car for a missing item and might return the bottles to his car once he found the item.
Defendant also argues that because Hobbs issued a summons for the wrong ordinance, i.e., "littering from a motor vehicle" instead of the general anti-littering ordinance, he lacked reasonable grounds for the stop. Accepting the truth of Hobbs' testimony, the stop was valid. Hobbs knew what any reasonable person knows - littering is illegal. And, indeed, there was an ordinance prohibiting what defendant did. The fact that Hobbs wrote down the wrong ordinance number on the summons is irrelevant. There was objective evidence of a violation of a municipal ordinance.
Defendant's reliance on State v. Williamson, 138 N.J. 302 (1994), and State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005), is misplaced. In Williamson it was not clear that the officer had observed conduct that could constitute a violation of any traffic law, and the case was remanded for a further factual hearing on what the officer observed. In Puzio, the officer observed conduct that he mistakenly thought was illegal when it was not. Because an officer must have an objectively reasonable belief that a defendant has violated the law before making a traffic stop, an officer cannot base a stop on a mistaken belief that the lawful conduct he did observe was illegal. In this case, Officer Hobbs observed conduct that was clearly illegal, and he thus had an objectively reasonable basis to apprehend defendant who was leaving the scene in his car.