Opinion
DOCKET NO. A-5167-11T4
03-07-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD W. HACKETT, JR., Defendant-Appellant.
Mark D. Abramson argued the cause for appellant. Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 07-12.
Mark D. Abramson argued the cause for appellant.
Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief). PER CURIAM
Defendant Richard W. Hackett, Jr., appeals the May 31, 2012 order of the Law Division denying his motion to suppress evidence related to a motor-vehicle stop. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
On May 27, 2011, Hackett was driving on Route 9 in Bass River. State Trooper Joseph Mahoney was driving behind him. At approximately 9:00 p.m., Hackett made a left-hand turn onto a road or driveway leading to the business complex owned by the Viking Yacht Club (Club). Mahoney turned left and followed Hackett down the road to a parking lot adjacent to the Club's business location. As Hackett was turning around because he had intended to go to the restaurant at the Club that was reached by a road slightly further down Route 9, Mahoney activated his flashing lights. He exited his troop car and approached Hackett's vehicle. Mahoney smelled alcohol as he spoke to Hackett and eventually arrested him for driving under the influence in violation of N.J.S.A. 39:4-50. Hackett was later charged with refusing consent to take breath samples in violation of N.J.S.A. 39:4-50.2.
Hackett filed a motion in the Bass River municipal court seeking to suppress the evidence resulting from the stop on the grounds that Mahoney did not have probable cause to make the stop. The motion was the subject of an evidentiary hearing before the municipal court judge on February 13, 2012. Mahoney testified for the State. Hackett presented the testimony of two of his passengers, Brittany Smith and Courtney Smith.
Because the Smith sisters share the same last name, we refer to them by their first names for the sake of convenience.
Mahoney testified that he was driving behind Hackett's vehicle shortly after 9:00 p.m. when he observed it make the left turn and drive down the road toward the Club's business area, which was a quarter to a half mile off of Route 9. He stopped Hackett at the end of the road to ascertain why he was there. According to Mahoney, he did so because the business had been closed and the owner requested property checks due to break-ins or attempted break-ins. Mahoney did not know the details of those events, but testified that the detective bureau had also asked the troopers to check the property. He further testified that there was no reason for someone to go back to the closed business location at that time of night. Finally, Mahoney testified that he smelled alcohol when he approached Hackett's vehicle to speak with him.
Brittany, who was seated in the back seat, testified that Hackett stopped at a liquor store in Little Egg Harbor prior to the turn onto the road that led to the Club's business site. She saw a police car across the street. When Hackett returned to the car from the store, he placed a box containing alcohol on the back trunk. When he opened the trunk, the box fell off and Hackett had to pick up the containers and return them to the box. Brittany observed the police car pull out after Hackett left the liquor store parking lot and follow them down Route 9.
Courtney, who was seated in the front passenger seat, testified that she observed Mahoney in his troop car parked across the street. According to Courtney, when the box fell off the trunk, some beer cans "exploded" and sprayed Hackett. Courtney testified that she observed Mahoney "watch this whole incident." She then observed Mahoney pull out of his parking space and drive down Route 9 after them. They had driven four or five miles before Hackett made the left turn. According to Courtney, Mahoney approached Hackett's car and asked where they were going. They responded that they were going to the Club's restaurant. Mahoney responded that they had been stopped "because . . . there had been robberies at the yacht club, or something like that, and we were . . . suspicious."
The State recalled Mahoney as a rebuttal witness. He testified that nothing had happened to call his attention to Hackett's vehicle before he saw it driving in front of him on Route 9 and turning left onto the road leading to the closed business.
Following counsel's arguments, the municipal judge delivered an oral decision denying the motion to suppress. He did not credit Courtney's testimony that Mahoney was watching the incident involving the dropped beer, but did credit Mahoney's testimony that he had not noticed anything involving Hackett's vehicle until he was driving behind it on Route 9. The judge determined that Mahoney lawfully stopped Hackett after he went down the road, which the judge characterized as a "private driveway, which looks like a roadway," to "a deserted area at a business site." Hackett then entered a conditional plea of guilty to both charges and was sentenced.
Hackett appealed the denial of his motion to suppress to the Law Division. The Law Division judge held the trial de novo on May 31, 2012. After hearing argument, he entered an oral decision denying the motion to suppress. Although the judge made no specific finding with respect to whether Mahoney observed the incident involving the fallen beer cans, he found that Mahoney's stated reasons for making the stop were not a pretext and that the stop was based on Mahoney's concern about someone going down the road to the closed business area at night, in light of the request that the area be monitored. The judge further found that Mahoney's actions were a valid exercise of the community caretaking doctrine, citing State v. Diloreto, 180 N.J. 264, 282 (2004). This appeal followed.
II.
Hackett raises the following issues on appeal:
POINT I: THE COMMUNITY CARE-TAKING EXCEPTION DOES NOT APPLY TO THIS CASE AS A LEGAL BASIS TO EFFECTUATE THE STOP OF [HACKETT]
POINT II: TROOPER MAHONEY'S STATED BASIS FOR THE STOP OF [HACKETT'S] VEHICLE WAS A PRETEXT TO CONDUCT AN OTHERWISE UNLAWFUL WARRANTLESS STOP
POINT III: THE LATENESS OF THE HOUR AND NOMINAL PRIOR CRIMINAL ACTIVITY AT THE YACHT CLUB WAS INSUFFICIENT TO ESTABLISH PROBABLE CAUSE TO STOP [HACKETT]
Our role in an appeal such as this is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). The Law Division determination is de novo on the record from the municipal court. R. 3:23-8(a). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
A.
We start our analysis with the Law Division judge's factual findings. Although the judge's findings were not as detailed as they could have been, we are satisfied that they were sufficient. The first issue before him was whether Mahoney made the stop because (1) he was concerned about a car driving down a road to a closed business facility at which he understood there had been break-ins and on which he had been instructed to keep an eye, or (2) he observed Hackett drop the beer while leaving the liquor store in Little Egg Harbor and the alleged concern about the closed business was a mere pretext for a stop based upon suspicions aroused by the liquor-store incident. Although the judge did not specifically address the issue of whether Mahoney observed the liquor-store incident, he specifically found that Mahoney's stated reason for the stop was truthful and not a pretext.
Having reviewed the record of the municipal trial, we conclude that the Law Division judge's finding "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. We note that the municipal judge credited Mahoney's testimony in that regard. Although not binding on the Law Division judge, the municipal judge's credibility findings are entitled to due regard. Id. at 157. In addition, there is no question that Hackett went down the wrong road and that it led only to the Club's closed business facility and not the restaurant to which he and his passengers were headed. Both the municipal judge and the Law Division judge credited Mahoney's testimony that the troopers in his patrol area had been asked to keep an eye on the closed business because of concerns about break-ins.
B.
The second issue before the Law Division judge was whether Mahoney's stated reasons provided a sufficient legal basis for the stop. As to that issue, our review is plenary. Goodman, supra, 415 N.J. Super. at 225. Hackett argues that Mahoney's actions were not justified by the community caretaking doctrine.
Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)) (internal quotation mark omitted). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects . . . .'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
The Supreme Court has defined a field inquiry as "the least intrusive" form of police encounter, occurring when a "police officer approaches a person and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting Nishina, supra, 175 N.J. at 510). During such an inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).
In contrast to a field inquiry, an investigatory stop, also known as a Terry stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904.
The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). Mahoney did not purport to have such a particularized suspicion when he stopped Hackett.
The "community caretaking" doctrine, on which the Law Division judge relied, "applies when the 'police are engaged in functions, [which are] totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a [criminal] statute.'" Diloreto, supra, 180 N.J. at 275 (alterations in original) (emphasis added) (quoting State v. Cassidy, 179 N.J. 150, 161 n.4 (2004)). There is also a "common-law right to inquire," which is "based upon a founded suspicion that criminal activity might be afoot." State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992). We have held that, "to the extent it is not part of 'community caretaking,'" the common-law right to inquire is "a precursor" of a field inquiry. State v. Adubato, 420 N.J. Super. 167, 179 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012).
Because Mahoney did not articulate a concern that Hackett or his passengers were lost or were otherwise in need of his assistance, but was instead concerned about the possibility of criminal activity at the Club's closed business site, we conclude that the stop was more in the nature of a common-law inquiry or field inquiry than an exercise of community policing, although the concepts are related and both were implicated.
Considering the totality of the circumstances, State v. Elders, 192 N.J. 224, 247 (2007), as informed by the facts found by the Law Division judge, we are satisfied that Mahoney did not violate Hackett's constitutional rights. He articulated a reasonable basis for following Hackett down the road and asking why he was there.
We note that Mahoney turned his flashing lights on before he approached Hackett's car, which raises the issue of whether the inquiry was transformed into a Terry stop. We addressed a similar issue in Adubato, supra, 420 N.J. Super. at 180-81, in which a police officer pulled up behind a stopped car at night based upon a 9-1-1 call and turned on his flashing lights before speaking to the driver.
We view the conduct as constitutionally ambiguous. The driver of such a car might be concerned that he or she was not free to drive away, Rodriguez, supra, 172 N.J. at 129 ("[A]s a practical matter, citizens almost never feel free to end an encounter initiated by the police"), but would also have been reassured that the person parking behind was a police officer rather than a stranger with potentially unfriendly intentions. The use of the flashing lights enhanced [the police officer] and his partner's safety, as well as Adubato's. Finally, common experience suggests that police officers routinely use their flashers when rendering roadside assistance.
In addition, in State v. Goetaski, 209 N.J. Super. 362, 366 (App. Div.), certif. denied, 104 N.J. 458 (1986), we held that sufficiently unusual circumstances sounding in community-caretaking concepts can "warrant the closer scrutiny of a momentary investigative stop and inquiry." See also
State v. Harris, 384 N.J. Super. 29, 45 (App. Div.), certif. denied, 188 N.J. 357 (2006) ("Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles.").
[Ibid.]
In this case, again considering the totality of the circumstances, we are satisfied that Mahoney's use of the flashing lights did not elevate the situation into a Terry stop. Once he detected the smell of alcohol, however, Mahoney had a reasonable suspicion of criminal activity justifying the further actions that led to Hackett's arrest and the charges against him.
Consequently, we affirm the order on appeal, although for slightly different reasons than those articulated by the Law Division judge.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION