On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 50-10.
The opinion of the court was delivered by: Ostrer, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Nugent and Ostrer.
The opinion of the court was delivered by OSTRER, J.A.D.
This appeal presents the issue whether a court, sitting as fact-finder in a quasi-criminal matter, may without defendant's consent, rely upon the evidence heard in a pre-trial suppression hearing as proof of guilt in the trial on the merits. We hold it may not and therefore reverse defendant's conviction for driving while under the influence (DUI), N.J.S.A. 39:4-50, which was entered solely on the basis of evidence elicited at a pre-trial hearing to suppress the fruits of the stop and subsequent arrest.
Defendant Bruno Gibson asserted the police lacked reasonable suspicion to stop his motor vehicle, and lacked probable cause to arrest him for DUI. At the suppression hearing conducted on May 26, 2010 in municipal court, Winslow Township Police Patrolman Carl Mueller testified he stopped defendant shortly after 4:00 a.m. on November 17, 2007, after defendant passed the officer's police vehicle. Officer Mueller testified defendant was traveling at a "high rate of speed," and failed to use his turn signal.
The officer detected an alcoholic beverage odor, and defendant admitted he had been drinking. Defendant exited his vehicle and submitted to field sobriety testing. The officer said defendant performed poorly on the one-legged stand, and the walk-and-turn test. The officer decided to arrest defendant, but defendant resisted. Officer Mueller required other officers' assistance, and the use of pepper spray, to subdue defendant. Officer Mueller believed defendant "was intoxicated" based on his failure to perform the two field sobriety tests, and the odor of alcoholic beverages.
The hearing continued on October 27, 2010, when the defense introduced video footage of the stop. Defense counsel and the prosecutor sharply disagreed about whether the video supported Officer Mueller's description of defendant's performance on the field sobriety tests.
We discern the following from our review of the video, which in part had no sound. Defendant, a tall, large man, appeared unsteady on his feet, but did not stumble as he walked to the rear of his car. He did not keep his leg aloft for more than a few seconds during the one-legged-stand test, but appeared not to deviate from a straight line in the walk-and-turn test. After defendant took a few steps towards Officer Mueller, and then turned his back to continue the test, the officer placed a handcuff on defendant's left wrist. Defendant prevented the officer from attaching the right handcuff.
The audio then commenced as another officer appeared on the scene to assist Officer Mueller. The two officers forced defendant against the trunk of his car, and succeeded in placing the handcuffs on him. They escorted him and then forcibly placed him against the patrol car's hood. Although defendant then fell out of the camera's view, the officers can be heard repeatedly asking defendant to get into the car, and it appeared he did not. After one officer said he would take defendant to the ground, the sounds reflected that he did so. The audio recorded defendant state the officers were hurting his back, he had a bad back, and he "didn't do nothing."
The municipal court found there to be probable cause for the stop based on defendant's speed. The court also found probable cause to arrest, stating:
With regard to the second prong of the motion, . . . on the first test, the one leg stand, . . . I saw the defendant lift his leg up and then quickly put it down. He did not hold for 20 seconds. . . . I would say it was more like two seconds[.] He never walked the heel-to-toe.
It looked like he was attempting to walk heel-to-toe, but he wasn't successful at all with that, . . . he took four steps and then stopped. He failed.
The resisting arrest . . . comes into play, not that he was charged with it, but it appeared as though Mr. Gibson was not able to understand the instructions he was given. Maybe he didn't understand the instructions on the - the psychophysicals, but he clearly couldn't do it, and the - that entire incident involving his refusal or inability to get into the vehicle, he was taken into custody, and the - the instructions were clear, get into the vehicle, and how long did that take?
I think that there is sufficient probable cause for the State to proceed with the - the charge of driving while intoxicated[.]
Having denied the motion to suppress, the court then discussed having a trial on the merits:
THE COURT: Reckless driving stands, and the failure to signal. I find that there is probable cause for those charges. We ready to start the trial?
MR. SZYMANSKI [Defense Counsel]: Yes, Your Honor.
THE COURT: Now, Mr. Prosecutor, in addition to Officer Mueller, were there other officers ...