On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-01-0022.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...