On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 25-11-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 14, 2012
Before Judges Cuff and Lihotz.
Defendant Antonette LaFauci appeals the denial of her motion to suppress evidence. Defendant argues that the information given to police was insufficient to warrant the stop of her motor vehicle. When stopped, defendant was arrested for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and pled guilty to the charge following denial of her motion to suppress.
Following de novo review in the Law Division, Judge Kyran Connor suspended defendant's driver's license for seven months and imposed the following fines, surcharges, assessments and penalties: $317 fine, $100 DUI and $100 Drunk Driving Enforcement Fund surcharges, $75 Safe Neighborhood assessment, $50 VCCB penalty, and $30 court costs. Judge Connor also required defendant to attend the Intoxicated Driver Resource Center for twelve hours.
At approximately 3:30 p.m. on April 19, 2009, Alan Lewis Johnson, an off-duty New Jersey State Police Trooper, was traveling on Route 9 in the Marmora section of Upper Township. Johnson is a veteran trooper with over twenty years road patrol experience. As he drove home that day, he observed a gray four-door sedan pass three vehicles on the shoulder of Route 9. Johnson's pick-up truck was one of the three passed vehicles. He was driving approximately 45 m.p.h. and estimated the speed of the gray sedan at 55 m.p.h.
Johnson also observed the gray sedan return to the proper travel lanes. However, almost immediately, one-half of the gray sedan crossed the center line of the highway.
Johnson contacted the State Police. He told Trooper Marshello that the driver of the gray sedan, a woman, was operating the vehicle erratically on Route 9 in Marmora. Johnson followed the sedan until he noticed a State Police vehicle approach in the opposite travel lane. As he followed the sedan, Johnson observed the sedan cross the center line several more times and drive onto the shoulder. Once, as the driver of the sedan crossed the center line, two cars in the on-coming travel lane pulled onto the shoulder.
Johnson slowed his vehicle to permit the responding State Police officer to turn his vehicle and enter the travel lane behind the sedan. Although the trooper activated the overhead lights, the driver of the sedan did not stop until she entered a campground. Johnson followed the sedan and the State Police vehicle into the campground. He identified the stopped gray sedan as the vehicle he had followed for five miles.
Defendant moved in the municipal court to suppress the evidence obtained following the stop of her motor vehicle. The motion was denied. She renewed her motion in the Law Division. Judge Connor found the trooper had a reasonable and articulable suspicion to stop defendant based on information relayed to the dispatcher by an eyewitness to her erratic driving. Judge Connor summarized his ruling as follows:
In effect Trooper Johnson had told, passed along as a person who is a known quantity information that was received by the on duty trooper that he had seen driving violations that justified a stop. The on duty trooper received and accepted that information and made the stop on its basis. And he concluded once he effected the stop that the defendant was under the influence.
On appeal, defendant raises the following arguments:
POINT 1: THE NEW JERSEY STATE POLICE DID NOT HAVE A REASONABLE AND ARTICULABLE SUSPICION TO INITIATE A POLICE STOP BASED ON A PHONE CALL DESCRIBING ONLY A FOUR-DOOR GRAY SEDAN DRIVING ERRATICALLY SOUTHBOUND ON ROUTE 9 SINCE NOT ...