Opinion
DOCKET NO. A-5721-13T1
01-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARILYN DUNN, Defendant-Appellant.
Kevin S. Quinlan, attorney for appellant. James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 1004-14. Kevin S. Quinlan, attorney for appellant. James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
In this appeal we are asked to determine if a driver's admission to drinking alcohol prior to operating her vehicle provided a police officer with a sufficient basis for administering sobriety and breathalyzer tests. For the reasons stated below, we determine that such admissions are sufficient, even when a driver is stopped for reasons unrelated to the operation of her vehicle and there are no other signs of intoxication.
The driver, defendant Marilyn Dunn, appeals from the Law Division's judgment denying her municipal appeal after a trial de novo on the record, affirming her conviction in the municipal court after she conditionally pled guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50, and reimposing the same sentence she received in the municipal court.
In her appeal to the Law Division, defendant argued the municipal court judge improperly denied her motion to suppress evidence. In that appeal, defendant did not challenge being stopped by the police for purposes of an investigation. Rather, she argued that, once the officer determined she was not involved in any actual or prospective criminal conduct, he did not have the requisite reasonable articulable suspicion to remove her from the vehicle to administer sobriety tests. She also challenged the municipal court judge's reliance on information that was outside of the record.
Before entering her conditional guilty plea, defendant appealed the municipal court's denial of her motion to suppress to the Law Division. The Law Division found the motion was properly denied. Defendant filed a motion with this court for leave to appeal that determination, which we denied.
In her appeal from the Law Division's judgment, defendant makes the same arguments. Specifically, she argues:
POINT I
THE SUPERIOR COURT JUDGE ERRED IN FINDING THAT THE OFFICER ACTED REASONABLY IN EXTENDING THE DETENTION AND INQUIRY OF THE DEFENDANT BEYOND THE BASIS FOR THE INITIAL STOP AND THEREFORE WAS NOT A VIOLATION OF THE DEFENDANT'S RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES UNDER THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF NEW JERSEY.
POINT II
THE MUNICIPAL COURT JUDGE ERRED IN CONSIDERING FACTS NOT IN EVIDENCE IN SUPPORT OF THE COURTS [sic] RULING.
The facts surrounding defendant's arrest and conviction are not in dispute. They can be summarized as follows.
Shortly after 6:00 p.m. on April 4, 2013, two Stockton University police officers pulled defendant's vehicle over after observing it parked on a dirt roadway used to access the university's athletic field for purposes of bringing equipment, supplies, and portable toilets to the field. There were no signs on the roadway indicting that trespassing is prohibited or that access is otherwise restricted, and the portable toilets present nearby were open to the public. One of the officers, Justin Nunno, became concerned after seeing a vehicle parked at that location because there were no activities occurring on the field that day and there had been reports of burglaries in the area.
When Nunno spotted defendant's vehicle, he drove towards it to investigate, but defendant pulled away. The officer followed and activated his vehicle's overhead lights, and defendant immediately pulled over.
Nunno approached defendant's vehicle and asked for her credentials, which she produced. He inquired as to why defendant had parked her vehicle on the road where he had observed her, and she responded by informing him that she had used one of the portable toilets. When Nunno asked defendant where she was coming from, she told him she was returning from playing golf. She then volunteered, without further questioning, that she had consumed three beers during an unspecified time period before operating her vehicle. Other than that statement, there was no indication that defendant had been drinking before Nunno asked defendant to step out of her vehicle. There was no detectable odor of alcohol, slurred speech, or bloodshot eyes. It was not until after defendant exited her vehicle that Nunno detected an odor of alcohol emanating from her.
Nunno administered field sobriety tests, which defendant failed, and subjected defendant to a breathalyzer test, which indicted her blood alcohol level was .12, an amount in excess of the legal limit. See N.J.S.A. 39:4-50(a). He issued defendant summonses charging her with DWI, N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96.
Defendant filed a motion to suppress in which she argued that, while the officer's stop was permissible as part of a proper investigation, he should have let defendant go on her way once he was satisfied that no criminal conduct had occurred. The municipal court conducted a suppression hearing and denied defendant's motion. She appealed to the Law Division and, in a comprehensive oral decision, Judge John C. Porto affirmed the denial. The judge explained that defendant's voluntary statement that she had been drinking prior to driving, as well as the circumstances surrounding the stop, "clearly gave rise to a reasonable suspicion . . . that the defendant was driving under the influence." The judge stated that, under the "totality of the circumstances, [defendant's] voluntary statement was enough."
The matter returned to municipal court, where plaintiff entered a conditional guilty plea to DWI. The court sentenced defendant, imposing mandatory fines and penalties, suspending her license for seven months, and requiring her to complete twelve hours in an intoxicated drivers resource center.
The plea to that charge resulted in the dismissal of the reckless driving charge.
Defendant appealed her conviction to the Law Division, arguing the same issues she raised in her suppression motion. On June 16, 2014, Judge Porto conducted a trial de novo on the record, convicted defendant, and imposed the same fines, penalties, and restrictions as the municipal court. The judge placed another thorough oral decision on the record explaining the court's reasoning for its decision, which substantially followed its reasons for denying defendant's appeal from the motion to suppress.
Defense counsel noted on the record he was not presenting "any new evidence," as he filed the appeal "to exhaust all . . . lower court appeals in order to get back before the Appellate Division."
Judge Porto entered a "Judgment Denying Municipal Appeal" on June 26, 2014. This appeal followed.
Our scope of review is limited, and we are bound to uphold the Law Division's findings if supported by sufficient credible evidence in the record. State v. Reece, 222 N.J. 154, 166 (2015). Only if the Law Division's decision was so clearly mistaken or unwarranted "that the interests of justice demand intervention and correction," can this court review the record "as if it were deciding the matter at inception and make its own findings and conclusions." State v. Johnson, 42 N.J. 146, 162 (1964); see also State v. Kuropchak, 221 N.J. 368, 383 (2015). But, like the Law Division, this court is in no position to "weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence," and should therefore defer to the municipal court's credibility findings. State v. Barone, 147 N.J. 599, 615 (1997); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010).
Applying this standard, we find no merit to defendant's arguments and affirm substantially for the reasons stated by Judge Porto. See R. 2:11-3(e)(2). We add only the following comments.
We agree with the judge's legal conclusion that, under the totality of the circumstances presented here, the officer had the requisite reasonable suspicion to expand the scope of his initial inquiry based primarily on defendant's admission that she had been drinking prior to operating her vehicle. As we have previously explained in the context of a driver being stopped for a motor vehicle violation:
We perceive no distinction between a stop based upon an observed motor vehicle violation and a legitimate investigatory stop, as defendant concedes this was.
Even though the initial stop was for a motor vehicle violation, a police officer is not precluded from broadening the inquiry of his stop "[i]f, during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances 'give rise to suspicions unrelated to the traffic offense.'" State v. Dickey, 152 N.J. 468, 479-80 (1998) (quoting United States v. Johnson, 58 F.3d 356, 357 (8th Cir.), cert. denied, 516 U.S. 936, 116 S. Ct. 348, 133 L. Ed. 2d 245 (1995)); see also State v. Baum, 199 N.J. 407, 424 (2009). Thus, in order to continue to detain a motorist once he is asked to exit the vehicle, a police officer must have a reasonable, articulable suspicion that the person is involved in criminal or unlawful activity beyond that which initially justified the stop. State v. Davis, 104 N.J. 490, 504 (1986). Reasonable suspicion is "a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity." Ashcroft v. al-Kidd, [563 U.S. 731, ___ n.3], 131 S. Ct. 2074, 2088, 179 L. Ed. 2d 1149, 1164 (2011); see also State v. Carvajal, 202 N.J. 214, 228 (2010); State v. Thomas, 110 N.J. 673, 678 (1988).
. . . .
In our view, administration of the field sobriety tests is more analogous to a
Terry stop than to a formal arrest, and therefore may be justified by a police officer's reasonable suspicion based on particularized, articulable facts suggesting a driver's intoxication. Measured against the important law enforcement interest in ensuring public safety on our roads, both the nature and extent of defendant's detention here are only minimally burdensome on his Fourth Amendment rights and insufficient to warrant application of a more exacting standard. To posit otherwise is to suggest that a police officer must turn a blind eye to new indications of more serious unlawful activity observed after stopping a vehicle for unrelated minor traffic violations.
[State v. Bernokeits, 423 N.J. Super. 365, 371-72, 374 (App. Div. 2011) (first alteration in original)(emphasis omitted).]
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). --------
Applying these principles, we disagree with defendant's argument that something more than her admission to drinking three beers before operating her vehicle was necessary for the officer to have the reasonable articulable suspicion that she was driving while intoxicated required to remove her from her vehicle and administer sobriety tests. See id. at 376. To hold otherwise would require a police officer to "turn a blind eye" to a possible threat against "the important law enforcement interest in . . . public safety on our roads." See id. at 374.
To the extent we have not specifically addressed defendant's remaining argument, we find it without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e) (2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION