April 12, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTONETTE LAFAUCI, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ENOUGH INFORMATION WAS AVAILABLE TO IDENTIFY THE CORRECT VEHICLE
POINT 2: THE OFF DUTY POLICE OFFICER IN THIS MATTER IS NO DIFFERENT THAN AN ANONYMOUS 911 CALLER MAKING A TIP TO THE POLICE OF A CAR DRIVING ERRATICALLY. THE TEST AS TO WHETHER THERE WAS REASO[N]ABLE SUSPICION LIES WITH THE ARRESTING OFFICER WHO DID NOT TESTIFY.
The issue before the court is whether observations of erratic driving relayed to police by an off-duty veteran police officer provide reasonable articulable suspicion to stop the reported driver. The State argues the case is controlled by State v. Crawley, 187 N.J. 440, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006); defendant responds that the case provides no support for the stop.
Effective law enforcement cannot be conducted unless one officer can act on instructions given by another officer. Id.
at 457. The officer acting on an order transmitted by another officer is not expected, much less required, to inquire about the source of the information that forms the basis of an order to stop and perhaps arrest a person. Ibid.
Here, the responding officer did not act on an order issued by Johnson, the off-duty trooper. Rather, this case is akin to the situation in which a motorist relays information of dangerous driving to police and the police act in accordance with this information.
In State v. Golotta, 178 N.J. 205, 219 (2003), the Court held that a call from an anonymous person to a 9-1-1 operator to report erratic driving provides a sufficient basis for the police to respond and stop the described vehicle. In Golotta, the police officer received from a dispatcher information of an erratic driver and the direction in which the vehicle was traveling from a dispatcher. Id. at 209. Following receipt of this information, the officer, while stopped at a traffic signal, observed the described car pass him. Id. at 210. The officer turned his car into the same traffic lane as the described vehicle and stopped the driver. Ibid. A second police officer traveling in the opposite direction arrived at the scene almost simultaneously as the first officer. Ibid.
Neither officer observed any erratic driving before stopping the described vehicle. Ibid.
The Court held that the information of erratic driving conveyed to the dispatcher by the anonymous caller to 9-1-1 contemporaneously with the observation and promptly relayed to the police officers provided reasonable suspicion of unlawful behavior to justify an investigatory stop. Id. at 228. The source of the information, an anonymous caller, was a factor to be considered in any determination of the justification of the stop. Id. at 213.
The Court identified three factors that informed its decision to reduce the degree of corroboration necessary to stop a motorist in this situation. Id. at 218. The Court stated:
First, but its nature, a call placed and processed via the 9-1-1 system carries enhanced reliability not found in other contexts. Second, the conduct at issue is the temporary stop of a motor vehicle based on reasonable suspicion, not the more intrusive search of its contents or arrest of its driver . . . . Third, an intoxicated or erratic driver poses a significant risk of death or injury to himself and to the public and, as such, that factor is substantial when evaluating the reasonableness of the stop itself. [Ibid.]
The caller must, however, "convey an unmistakable sense that [he] has witnessed an ongoing offense that implicates a risk of imminent death or serious bodily injury to a particular person such as a vehicle's driver or to the public at large." Id. at 221-22. Moreover, the call must be placed close in time to the observations. Id. at 222.
Here, the facts are more compelling than in Golotta to support the stop. The call to the State Police was not made by an anonymous caller. The caller was known to the recipient of the call as a veteran road trooper. Unlike Golotta, the caller followed the erratic driver until an on-duty trooper responded, and the caller remained at the scene to confirm that the stopped vehicle was the vehicle he had observed driving erratically. This case contains the corroboration absent in Golotta.
We, therefore, affirm the July 22, 2010 order denying defendant's motion to suppress.
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