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State of New Jersey v. Richard Sabatino


October 19, 2012


On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-01-0022.

Per curiam.


Submitted March 7, 2012

Before Judges Sapp-Peterson and Ostrer.

Following denial of his motion to suppress heroin seized during a warrantless search of his person incident to arrest, defendant Richard Sabatino pled guilty to third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1), and being under the influence of CDS without a prescription, a disorderly persons offense, N.J.S.A. 2C:35-10b. The plea agreement called for an undefined period of probation conditioned on ninety days' incarceration. The court, however, sentenced defendant to concurrent terms of two years probation, conditioned on sixty days of incarceration. The trial judge permitted defendant to apply for "CLAP," which we presume is the county's labor assistance program. See N.J.S.A. 2B:19-5. We reverse.


Hackettstown Police Officer Brian Ficarra was the sole witness at the suppression hearing. Shortly after midnight on October 26, 2008, the officer was monitoring traffic while parked at the five-point intersection of Route 46, Route 604, and Mountain Avenue. The officer noticed defendant stumble and stagger across Route 46 in the middle of a block. Defendant looked like he was under the influence of "either alcohol or drugs." As he crossed, a minivan approached and defendant "all but walked into the back end of it . . . like he didn't even see it." Defendant made it to the other side of Route 46 and continued to the intersection with Willow Grove Street, where a car was stopped at the light. Defendant "appeared to know the subject who was driving that vehicle." Still "very stumbly, clumsy," defendant spoke briefly to the driver, then walked around the vehicle and entered it.

When the light turned green, the officer claimed, the driver turned right from the left-hand-turn-only lane, to travel west on Route 46. The officer then performed a motor vehicle stop. He informed the driver and defendant that the driver made an illegal turn, and defendant failed to put on his seatbelt. However, the court found, based on photographic evidence, that there was no dedicated left-turn lane, and the driver "could have turned in either direction." The officer testified that even if defendant had not entered a vehicle, he would have stopped and arrested him for disorderly conduct.

The officer detected the smell of alcoholic beverages and asked the driver to exit, so he could determine whether the odor came from the driver or defendant. The officer then questioned defendant, who admitted he had been drinking. He was slurring his words and had pinpoint pupils. He was also eating a roll and seemed oblivious to the food sticking to his face.

The officer then "placed him under arrest for disorderly conduct, being under the influence."*fn1 He allowed the driver to depart without issuing him any traffic complaints. He said the driver was "trying to do the right thing by his friend," and "simply trying to help a friend . . . that appeared to be intoxicated get home." When asked why he placed defendant in custody for the petty disorderly persons offense of disorderly conduct, the officer stated he did so because he did not have a summons book with him and he was concerned about defendant's physical state. He admitted the driver did not ask for the officer's aid.

Once defendant was placed in the back of the patrol car, the officer delivered a Miranda warning.*fn2 Defendant then admitted he had taken a prescription pain pill that was not prescribed to him. Based on this information, the officer decided to take defendant to the emergency room at a local hospital, to make sure he was not "suffering any ill effect from the intoxication or the narcotics he had taken." Before releasing him to the emergency room staff, the officer searched defendant and found two bags of suspected heroin.

The court denied defendant's motion to suppress the heroin.*fn3

The court found there was probable cause to believe defendant was under the influence of drugs or alcohol, and his crossing the highway constituted hazardous conduct. The court concluded the officer was mistaken about the left-turn only lane, but was justified in conducting a traffic stop based on the seatbelt violation.

The court ruled the officer was justified in arresting defendant for disorderly conduct, consisting of defendant's public intoxication, which created a hazardous condition for himself or another. The court also said that "[t]he officer had every probable cause to stop this defendant and to arrest him for public intoxication." He found the officer's decision to arrest, as opposed to issue a summons, was reasonable in order to protect defendant and the public.

Defendant appeals and raises the following points:



A. Ficarra Did Not Have Probable Cause To Believe That Sabatino Committed Disorderly Conduct When He Crossed The Street Without Using The Crosswalk Where There Was No Evidence That Any Member Of The Public Observed The Conduct.

B. At Most, Sabatino's Conduct Constituted Jaywalking, Which Is Not An Arrestable Offense.




We defer to the trial court's factual findings on a motion to suppress, unless they were "clearly mistaken" or "so wide of the mark that the interests of justice require[] appellate intervention." State v. Elders, 192 N.J. 224, 245 (2007) (citation and quotation omitted). However, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). It is on that basis that we part company with the trial court.

We conclude the officer did not have probable cause to arrest defendant after he stopped the vehicle in which defendant was riding as a passenger. The heroin seized during the search incident to arrest at the emergency room should have been suppressed as the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415-16, 9 L. Ed. 2d 441, 453 (1963).

The State argues the officer had probable cause to arrest defendant for disorderly conduct when he crossed Route 46 and almost walked into a passing vehicle, N.J.S.A. 2C:33-2; and for the motor vehicle violation of failing to use a cross-walk. N.J.S.A. 39:4-33. We disagree.

"Probable cause exists if at the time of the police action there is 'a well grounded suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (citation omitted). In assessing the constitutionality of a search or seizure, we must assess whether the police officer's actions were objectively reasonable. State v. Bruzzese, 94 N.J. 210, 220 (1983). If an officer makes a mistake of law, and erroneously perceives undisputed facts to constitute a violation of law, then a search or seizure based on that perceived violation is not objectively reasonable. State v. Puzio, 379 N.J. Super. 378, 383-84 (App. Div. 2005) ("where an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop").

In Puzio, we determined an officer unconstitutionally stopped a passenger vehicle used for commercial purposes that did not display business-identifying information; the officer mistakenly believed all commercial vehicles had to display such information, and was unaware that passenger vehicles were exempt. Id. at 381-82.

In this case, Officer Ficarra lacked probable cause to believe defendant committed disorderly conduct because he mistakenly applied a key element of the statute. A person commits the petty disorderly persons offense of disorderly conduct "if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he . . . [c]reates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor." N.J.S.A. 2C:33-2a(2).*fn4 The key element that was missing here was proof that defendant's actions "serve[d] no legitimate purpose of the actor."

The State would apparently equate "legitimate" with "lawful," and argue that there was probable cause to believe defendant committed what is commonly known as jaywalking.

N.J.S.A. 39:4-33. Consequently, defendant could have had no "legitimate" purpose in crossing Route 46. On the other hand, an "act which serves no legitimate purpose of the actor" may mean acts that are performed solely to create "a hazardous or physically dangerous condition[.]" N.J.S.A. 2C:33-2a(2). Had the Legislature intended to mean "lawful purpose" it could have said so, instead of using the distinct formulation, "legitimate purpose."

In view of this apparent ambiguity, we may consider extrinsic materials. See, e.g., Cast Art Indus., LLC v. KPMG, LLP, 209 N.J. 208, 222 (2012) ("[I]f the language selected by the Legislature is ambiguous or admits of more than one plausible interpretation, courts may turn to extrinsic evidence such as legislative history to discern the legislative intent."). As our disorderly conduct provision, N.J.S.A. 2C:33-2a(2), substantially mirrors section 250.2(1)(c) of the Model Penal Code (MPC), we may be guided by the commentary to that MPC section. See State v. D.A., 191 N.J. 158, 167 (2007) (court may rely on MPC commentary in interpreting New Jersey criminal statutes based on MPC provision).

The MPC commentary reflects that MPC § 250.2(1)(2) was designed to address mischief for the sake of mischief, which creates hazardous or physically dangerous conditions.

Subsection (1)(c) covers one who, with purpose to create public inconvenience, annoyance, or alarm or in reckless disregard of the risk of doing so, "creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." This provision reaches setting off "stink bombs," strewing garbage, nails, or noxious substances in public passages, turning off lights in an occupied theater, and an endless variety of public annoyances that mischief can conceive. [Model Penal Code and Commentaries: Part II, § 250.2 at 347 (1980).]

The MPC drafters intended to exclude activities that serve purposes other than making dangerous mischief.

The provision is expressly limited to acts that "serve no legitimate purpose of the actor." For example, the maintenance of a tannery, dump, or other odorous business might constitute a public nuisance, but it would not be punishable under this subsection. Similarly, speaking on a public street might occasion inconvenience to passers-by but would not constitute an offense under this provision. [Ibid.]

In recommending the adoption of this provision, the New Jersey Criminal Law Revision Commission (Commission) amplified the MPC example, and clarified that a person's acts could serve purposes that were both unlawful and legitimate.

It seems preferable to try to achieve as much definition as is practicable, and especially, in Subsection c, to make it clear that not all discomforting activities are criminal. For example, the maintenance of a tannery, dump, or other odorous business might create public discomfort or violate the zoning laws, but it would not be punishable as disorderly conduct since this Subsection expressly excludes acts which serve a legitimate purpose of the actor.

[2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:33-2, at 295 (1971) (emphasis added).]

In other words, a tannery owner's business operations may create a hazardous or physical condition, and may violate zoning laws, but if the operations serve the owner's legitimate business purposes, then the owner does not commit disorderly conduct. Likewise, defendant here may have "create[d] a hazardous or physically dangerous condition," N.J.S.A. 2C:33-2a(2), by crossing the highway; he may have "recklessly" created at least a risk of "public inconvenience, annoyance or alarm," N.J.S.A. 2C:33-2a, by almost walking into the side of the minivan; and he may have violated N.J.S.A. 39:4-33 in doing so. However, defendant had a legitimate purpose in stumbling across Route 46 - to get to the other side.

We also draw support for our view from the Legislature's determination not to adopt MPC § 250.5, proposed by the Commission as § 2C:33-5, which would have prohibited public drunkenness. The provision would have made it a petty disorderly persons offense if a person "appears in any public place manifestly under the influence of alcohol, not therapeutically administered, to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity." 1 Final Report of the New Jersey Criminal Law Revision Commission, § 2C:33-5, at 113 (1971). The Commission apparently proposed the public drunkenness provision because the disorderly conduct provision was not intended to reach that kind of conduct. We would violate the Legislature's apparent intent if we imported into the disorderly conduct statute behavior that the Legislature chose not to proscribe expressly. We note also the Legislature later expressly prohibited municipalities from adopting legislation creating an offense of public intoxication. N.J.S.A. 26:2B-29.*fn5

Nor are we persuaded by the State's argument that a different result is compelled by our decision in State v. Oliver, 320 N.J. Super. 405, certif. denied, 161 N.J. 332 (1999), where we affirmed a conviction for disorderly conduct under N.J.S.A. 2C:33-2a(2). The case involved surfers who violated a Spring Lake ordinance barring entry into the ocean waters in the wake of a hurricane. The defendants defied repeated and explicit requests by police to desist and leave the water. We held the evidence supported defendant's convictions under N.J.S.A. 2C:33-2a(2), stating:

Defendants entered the water to surf when the beach was closed - the lifeguard stands were down and pulled back nearly off of the beach. More egregiously, despite the hour-long effort of at least six Spring Lake police officers, defendants chose to ignore the officers and remain in the water until the Coast Guard intervened. As a result of remaining in the dangerous surf, defendants created a dangerous condition, or, at the very least, a risk thereof, to themselves and the police and lifeguard personnel who would have been required to save defendants had an emergency arisen. Furthermore, defendants' actions restricted the police's and lifeguards' activity for an extended period of time, obstructing their ability to attend to their normal duties. [Id. at 421-22.]

We did not expressly discuss why the surfers' actions served no legitimate purposes of the surfers. However, Oliver may stand for the proposition that a fact-finder may conclude that an actor's repeated and direct disobedience of a law enforcement officer's command to desist from an activity does not serve the actor's legitimate purposes. Compare Commonwealth v. Roth, 531 A.2d 1133 (Pa. Super. Ct. 1987) (protesters' entry into a church to disturb its occupants, despite police commands not to enter, served no "legitimate purpose" under disorderly conduct statute), with Commonwealth v. Feigenbaum, 536 N.E.2d 325, 328 (Mass. 1989) (Commonwealth failed to prove protesters' actions blocking vehicle at Air Force base, in defiance of police commands to disperse, lacked "legitimate purpose," since actions may be both criminal and "have [the] legitimate purpose" of expression on a public issue).

We also reject the State's argument that the officer was authorized to arrest defendant for violating N.J.S.A. 39:4-33, the jaywalking statute, or N.J.S.A. 39:3-76.2f(a), the seatbelt law. A law enforcement officer is authorized by statute to arrest, without a warrant, a person "violating in his presence . . . any provision of chapter 3" or "chapter 4" of Title 39. N.J.S.A. 39:5-25. However, the Supreme Court has explained that the arrest power for minor traffic offenses, although not expressly qualified in the statute, is not unbridled, and must be exercised in a way that does not violate the constitutional rights of citizens. State v. Pierce, 136 N.J. 184, 190-93 (1994).

"[D]anger to the public safety is one of the significant factors that informs a police officer's decision whether to arrest or issue a summons in respect of traffic offenses." Id. at 207. Arrest may also be justified to assure the suspect's appearance in court, particularly if incarceration is a potential sanction for the violation. Ibid. See also State v. Hurtado, 219 N.J. Super. 12, 27-28 (App. Div. 1987) (Skillman, J., dissenting) ("[I]t may be concluded that some offenses, such as illegal parking, jaywalking, and littering, do not pose a sufficiently grave threat to the public welfare to warrant even the temporary detention of an alleged offender pending the posting of bail.") (emphasis added), rev'd on basis of dissent, 113 N.J. 1 (1988).

Applying this standard, there were insufficient grounds to arrest defendant for violating N.J.S.A. 39:4-33, the jaywalking statute, or N.J.S.A. 39:3-76.2f(a), the seatbelt law. There was certainly probable cause to believe a jaywalking violation had occurred, which authorized the officer to stop the vehicle that defendant had entered. Brendlin v. California, 551 U.S. 249, 257, n.3, 127 S. Ct. 2400, 2407 n.3, 168 L. Ed. 2d 132, 140 n.3 (2007) ("Of course, police may also stop a car solely to investigate a passenger's conduct."). Yet, there was no basis to believe before the officer placed defendant in custody, that he was unsafe, or posed a continuing threat to the safety of others. Instead, he was in the vehicle with a driver whom the officer presumed was defendant's friend. Moreover, the officer's lack of a summons book was no excuse to subject a person to an otherwise unwarranted arrest.*fn6

The officer may also have been justified in stopping the vehicle, and inquiring as to defendant's welfare, in the exercise of the community caretaking function. See, e.g., State v. Washington, 296 N.J. Super. 569, 572 (App. Div. 1997). However, the circumstances did not authorize defendant's arrest on that basis. Only after the illegal arrest and Miranda warning did defendant disclose his consumption of prescription medicine that may have raised health concerns in the officer's mind about its interaction with alcohol. It was only then that the officer acquired an otherwise valid basis to arrest for a violation of N.J.S.A. 2C:35-10b. And it was only then that the officer determined that defendant should be transported to a hospital. There also is no evidence that pre-arrest, the officer detected sufficient signs of incapacitation to justify removing defendant from his friend's vehicle, and transporting him to "an intoxication treatment center or other facility." N.J.S.A. 26:2B-16.

Although defendant did not appeal the court's order denying suppression of the custodial statement, the subsequent arrest and seizure of the heroin were still fruits of the illegal arrest and should have been suppressed.

Reversed and remanded. We do not retain jurisdiction.

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