Unpublished case with explanation of reasonable suspicion to arrest for DWI State v Lord
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3228-05T23228-05T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
EDMUND S. LORD, III,
Defendant-Respondent.
___________________________
Argued Telephonically September 22, 2006 - Decided October 5, 2006
Before Judges Lintner and Seltzer.
On appeal from the Superior Court of
New Jersey, Law Division, Gloucester
County, 04-4-320.
Michael S. Curwin, Deputy Trial
Chief, argued the cause for appellant (Sean F. Dalton, Gloucester County Prosecutor, attorney; Mr. Curwin, on the brief).
Kevin Leckerman argued the cause for respondent (Levow and Associates, attorneys;
Mr. Leckerman, on the brief).
PER CURIAM
Pursuant to leave granted, the State appeals a Law Division order granting defendant's motion to suppress evidence of the results of sobriety tests. We affirm.
The record reveals that on June 19, 2005, defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50, and other motor vehicle offenses. After a hearing, defendant's motion to suppress evidence of the results of sobriety tests was denied. Defendant pled guilty to a charge of DWI, while reserving his right to appeal. See R. 7:5-2(c)(2). The remaining charges were merged into the DWI conviction and "dismissed as merged pursuant to the plea" agreement reached with the prosecutor. That plea agreement did not provide for reinstitution of the dismissed charges in the event defendant's anticipated appeal was successful.
Defendant appealed the denial of his suppression motion to the Law Division. The judge hearing the appeal granted the motion on December 23, 2005, and the ruling was memorialized in a January 11, 2006, order. That order vacated the guilty plea and resulting sentence and provided that, in the absence of an appeal, "an order of not guilty as to said charge pursuant to N.J.S.A. 39:4-50 shall immediately become effective." It also provided that "all other . . . determinations of the municipal court as to related motor vehicle summonses shall remain in effect." We granted the State's motion for leave to appeal.
The facts, revealed in the hearing before the Municipal Court judge, are not in dispute. Sergeant Rodney Sawyer was patrolling Jackson Road in Mantua Township in the early morning hours of June 19, 2005, when he observed defendant's vehicle cross both the center and shoulder lines. Sawyer activated his video recorder and followed defendant's car for approximately two and one-half minutes. Sawyer testified that, during that period, the driver accurately negotiated several full stops, appropriately utilized his signals when executing turns, did not speed, and properly stopped his vehicle at Sawyer's signal. Although Sawyer would not concede that during the period recorded by the video camera "there was no erratic operation of the motor vehicle," the Law Division judge, after viewing the tape, concluded that defendant operated his car correctly. Our independent review of the tape confirms that conclusion.
At Sawyer's request, defendant produced a New York driver's license, an expired insurance card, and a registration evidencing the vehicle was owned by a Mantua Township resident with an address on Lantern Way. Further inquiry from Sawyer elicited defendant's acknowledgement that he was driving a friend's car and returning to his friend's home on Lantern Way. Sawyer knew that there was a more direct route to Lantern Way but did not inquire as to why defendant had not taken that route.
Defendant denied drinking. Sawyer observed that defendant's "eyes were bloodshot and watery" and his face was "flushed." Nevertheless, Sawyer agreed that defendant did not slur his words, did not have difficulty producing his documents, and did not, at that time, exhibit any odor of alcohol. Sawyer then asked defendant to exit the car "to conduct some field sobriety tests . . . ." According to Sawyer, his request was prompted by defendant's initial inability to maintain his lane, his bloodshot and watery eyes, his flushed face, and his failure to take the most direct route to his intended destination.
Once he had removed defendant from the vehicle and taken him to the rear of the vehicle to begin those tests, Sawyer detected the odor of alcohol. The Municipal Court judge found that the factors identified by Sawyer justified the administration of the field sobriety tests. The Law Division judge disagreed, believing that the circumstances identified by Sawyer did not cross the requisite threshold.
On appeal, we determine whether the findings of the Law Division judge are supported by sufficient credible evidence in the record. State v. Johnson, 42 N.J. 146, 162 (1964). We do not review the decision of the municipal court judge. Ibid. However, we are obliged, as was the Law Division judge, to defer to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
In this case, the divergent conclusions of the two lower courts were not the result of varying credibility findings; the testimony of Sawyer was accepted by both the Municipal Court and the Law Division judge. The only question was whether the facts to which Sawyer testified were sufficient to justify the sobriety testing. That question is reviewed
de novo, see Balsamides v. Protameen Chem., Inc., 160 N.J. 352, 372 (1999), because "a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
There is no question that the initial motor vehicle violation permitted Sawyer to stop defendant.
See State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed.2d 660, 673 (1979)). Sawyer was authorized to remove defendant from the car for the officer's own safety.
See State v. Smith, 134 N.J. 599, 609-11 (1994) (adopting Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L.Ed.2d 331 (1977)). In this case, Sawyer did not ask defendant to exit his car for safety reasons, but to perform sobriety tests. Because Sawyer did not testify that he received any other information concerning defendant's intoxication from the act of exiting the car, we need not consider the effect of Sawyer's motive in our analysis.
Once Sawyer directed defendant to the rear of his car to begin the sobriety tests, the legitimate stop escalated into a "temporary investigative detention because a reasonable person in defendant's position would not have believed [he] was free to disobey" the direction. State v. Nikola, 359 N.J. Super. 573, 583 (App. Div.), certif. denied, 178 N.J. 30(2003). Such a detention, often called a Terry stop, must be "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. Nishina, 175 N.J. 502, 511 (2003) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)). "The standard of reasonable suspicion required to uphold an investigative detention is lower than the standard of probable cause necessary to justify an arrest." Ibid. (citing State v. Stovall, 170 N.J. 346, 356 (2002)). Probable cause requires "a well-grounded suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (internal citation and quotation marks omitted).
The lesser standard of reasonable suspicion may be described
as requiring "some minimal level of objective justification for making the stop." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989) (internal citation and quotation marks omitted). Its application is highly fact sensitive and, therefore, not "readily, or even usefully, reduced to a neat set of legal rules." Ibid. (internal citation and quotation marks omitted). Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct.
[State v. Nishina, supra, 175 N.J. at 511 (citations omitted).]
Applying these considerations, we agree with the Law Division judge that the reasons given by Sawyer for ordering the sobriety test did not give rise to a "reasonable suspicion" that defendant was driving while intoxicated. Although defendant had been seen to violate the motor vehicle laws, his behavior thereafter, over several minutes, exhibited no further violation. His failure to take the most direct route home was not the subject of inquiry, although it is reasonable to infer that an out-of-state resident, as evidenced by his driver's license, might have been familiar only with the major roads leading from one location to another. Defendant exhibited no physical impairment: he had no difficulty producing his documents; his speech was not slurred; and he emanated no odor of alcohol. His flushed face and watery eyes were, Sawyer admitted, often seen in early hours and unconnected with the consumption of alcohol.
Although the question is close, on balance we see no articulable facts leading to a "reasonable suspicion" that defendant was driving while intoxicated. Since the sobriety tests followed the unauthorized Terry stop, the judge properly suppressed the evidence.
The State also appeals from that portion of the judge's order that held "all other August 3, 2005, determinations of the municipal court as to related motor vehicle summonses shall remain in effect." The State entered into a plea agreement pursuant to which all related motor vehicle offenses were dismissed and defendant preserved his right to appeal the denial of the suppression motion. Nothing in the plea agreement suggests that if the DWI charge was successfully challenged, the other tickets would be reinstated. We see no basis to disturb the judge's determination that the dismissals should not be vacated. The cases cited by the State involve attempts to vacate a guilty plea entered without specific anticipation of an appeal. They do not address the factual scenario presented here and are inapposite.
Affirmed.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968).
The order appears to have utilized the wrong date. August 3, 2005, was the date of the suppression hearing but no ruling was made with respect to the tickets. Rather, those tickets were dismissed when defendant pled guilty on September 21, 2005.
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A-3228-05T2
October 5, 2006
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