Opinion
DOCKET NO. A-4046-13T3
03-03-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAURA ALLOCCO, Defendant-Appellant.
Mitchell J. Ansell argued the cause for appellant (Ansell Grimm & Aaron, PC, attorneys; Mr. Ansell, of counsel and on the brief). Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Yomtov, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-07-1255. Mitchell J. Ansell argued the cause for appellant (Ansell Grimm & Aaron, PC, attorneys; Mr. Ansell, of counsel and on the brief). Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Yomtov, of counsel and on the brief). PER CURIAM
After the trial court denied defendant's motion to suppress following a warrantless traffic stop, defendant pleaded guilty to a single count indictment charging her with fourth-degree operating a motor vehicle during a period of license suspension for a second or subsequent violation of N.J.S.A. 39:4-50. N.J.S.A. 2C:40-26(b). She now appeals from the order denying her suppression motion. She argues that the police lacked a reasonable, articulable basis for suspicion, because they relied solely upon an unidentified citizen's complaint that defendant was operating a motor vehicle while her license was suspended. Having reviewed defendant's arguments in light of the facts and applicable legal principles, we affirm.
I.
We discern the following facts from the record of the suppression hearing. Middletown Township Police dispatcher, David A. Nelson, and Middletown Police Officer, Stephen Greenwood, were the sole witnesses.
On March 13, 2013, Nelson received a call from a citizen on the police department's non-emergency telephone line. The female caller did not volunteer her name, and Nelson did not ask for it. Nelson stated that the telephone system displayed a caller's telephone number, but did not automatically record it, and Nelson did not manually note it. The conversation between Nelson and the caller, as with all calls, was recorded. The following ensued:
DISPATCHER: Middletown Township Police.
CALLER: Hi, I was wondering if I could report someone driving on a revoked license, or no?The caller then provided the dispatcher with the license plate number. The dispatcher then continued:
DISPATCHER: Sure.
CALLER: Okay, they're on the road now, they're eastbound on 36.
DISPATCHER: Mmhmm.
CALLER: And it's a blue Toyota Rav4.
DISPATCHER: Okay, who is it?
DISPATCHER: Alright, do you know where they're heading towards?
CALLER: Um, they're going to be heading towards like Atlantic Highlands, like going up the whole thing of 36. It's just that she's an unfit driver . . .
DISPATCHER: Mmhmm.
CALLER: . . . and she's been warned multiple times and this is like the third time she's been, like with a DUI, and I just don't feel with her being safe on the road.
DISPATCHER: Do you know what her name is?
CALLER: Her name is Laura Allocco.
DISPATCHER: Laura Allocco.
CALLER: The car's not going to be registered in her name because she doesn't have a license.
DISPATCHER: Yeah. Okay, we'll put it out to the adjoining jurisdictions to see if they get lucky.
CALLER: Alright, thank you so much. I really appreciate it.
DISPATCHER: No problem, bye.
CALLER: Bye.
The audio recording and a transcript prepared by the State were admitted into evidence. As part of the hearing transcript, the court reporter also transcribed the audio as it was played in open court. We present a dialogue based on our review of the audio, which is virtually identical to the hearing transcript.
Nelson reviewed defendant's driving record, and confirmed what the caller reported: her license was in fact suspended, and she had multiple violations for previously driving while suspended, as well as a refusal to consent to chemical breath testing. Nelson radioed Greenwood, who was then patrolling the Route 36 area of the township. Nelson told Greenwood to "keep your eye open for a light blue Toyota Rav4" with the tag number the caller provided, which was "being driven by a subject that's 3-40," which referred to N.J.S.A. 39:3-40, the statute which sets forth the penalties for driving while suspended. Nelson did not impart to Greenwood the driver's name or sex.
Greenwood then stopped to observe eastbound traffic on Route 36 from a supermarket parking lot. He saw a vehicle that fit Nelson's description pass by. He followed, and confirmed a match with the license plate number provided. Greenwood also determined, by using his mobile computer, that the vehicle was not stolen or unregistered. He followed the driver for about one mile, and observed no motor vehicle violations. He then effectuated a traffic stop. Allocco identified herself and admitted she was driving while suspended for driving under the influence (DUI). Greenwood placed her under arrest.
In support of the suppression motion, defense counsel argued that the caller's tip, which was the sole basis for the stop, failed to create reasonable and articulable suspicion to justify police action. Counsel argued that this case fell short of the grounds deemed sufficient for a motor vehicle stop in State v. Golotta, 178 N.J. 205 (2003).
The trial judge denied defendant's motion to suppress in a thorough oral opinion. After reviewing general legal principles governing a motion to suppress a motor vehicle stop, the judge found:
In the instant matter, the caller provided very detailed information to the Middletown Police dispatcher. The caller accurately described the make, model, and license plate number and that the defendant was not [the] registered owner of the car. The caller also informed the dispatcher that the defendant was driving east on Route 36 towards Atlantic Highlands.
Furthermore, the caller knew that the defendant was driving on a suspended license
caused by a D.W.I. conviction and the defendant had been warned on multiple occasions not to drive during this period of suspension. Furthermore, the caller's extensive knowledge of the defendant's present location and circumstances evidence[d] a highly reliable and actionable information.
In addition, the stop of defendant's vehicle was warranted because of the need to protect New Jersey roads from dangerous drivers. Although the caller did not state the defendant was presently intoxicated, the defendant had been convicted of D.W.I. on multiple occasions and had been previously cited for driving on a suspended license.
I do note, and certainly it came out loud and clear during cross-examination, that there were no Title 39 violations. This is not a case where either before or after the stop or before or after the observation of defendant's vehicle that the police observed any additional violations which might provide an additional basis for pulling over the defendant's vehicle. . . .
This defendant is the type of driver that poses a great risk on New Jersey roads. [The officer] had a duty to act. Based on the corroborated tip given to the Middletown Dispatch and the detailed description of the vehicle given to [the officer], the stop of defendant was based on a reasonable articulable suspicion that the defendant was driving on a suspended license.
Allocco thereafter pleaded guilty to the indictment. Pursuant to her plea agreement, the court sentenced her on May 9, 2014, to one year probation, conditioned upon 180 days incarceration. The court granted defendant's request, which the State did not oppose, for bail pending appeal pursuant to Rule 2:9-4.
Notwithstanding the court's finding that drivers like defendant "pose[d] a great risk on New Jersey roads," the judge made no explicit findings "that the safety of any person or of the community will not be seriously threatened if the defendant remains on bail . . . ." R. 2:9-4.
Defendant's sole point on appeal is:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE MOTOR VEHICLE STOP WAS NOT SUPPORTED BY A REASONABLE AND ARTICULABLE SUSPICION OF A MOTOR VEHICLE OFFENSE.
II.
We defer to the trial court's factual findings on a motion to suppress, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). However, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).
The standards governing motor vehicle stops are familiar and well-settled, and we need not review them at length here. See generally Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Golotta, supra, 178 N.J. at 213; State v. Locurto, 157 N.J. 463 (1999). An officer must have at least a reasonable and articulable suspicion of a motor vehicle violation or criminal offense in order to effectuate an investigatory stop. Golotta, supra, 178 N.J. at 213.
The issue on appeal is whether the officer had a sufficient basis to stop Allocco on suspicion she was driving while her license was suspended. N.J.S.A. 39:3-40. The answer turns on the reliability of the unidentified caller's report.
It is well-settled that "[a]n anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 127 (2002); see also Amelio, 197 N.J. at 212; Golotta, supra, 178 N.J. at 213. "[A]n informant's 'veracity,' 'reliability' and 'basis of knowledge' are 'relevant in determining the value of his report.'" Rodriguez, supra, 172 N.J. at 127 (quoting Alabama v. White, 496 U.S. 325, 328, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)). Reliability usually must be established by "some independent corroborative effort." Ibid.
In Golotta, supra, 178 N.J. at 209, the Court applied these principles to the special circumstance of an anonymous citizen informant's call to a 9-1-1 operator, to report a case of erratic driving in progress. The caller provided details — a description of the make and model of the vehicle, the license plate numbers, and its general location and direction. Id. at 209-10. Once officers confirmed the identity of the reported vehicle, they effectuated a stop without first observing and confirming the report of erratic driving. Id. at 210. The Court upheld the constitutionality of the stop. Id. at 228.
Although the record demonstrated that the caller expressly wished to remain anonymous, id. at 209-10, the Court held that a reduced degree of corroboration was required to uphold the stop. Id. at 218. The Court relied on three factors. Id. at 218-221. First, the call was placed to a 9-1-1 operator by a citizen complainant, which "carries enhanced reliability not found in other contexts." Id. at 218. The Court noted it was a crime to knowingly place a call to a 9-1-1 system without needing 9-1-1 service. Id. at 219; N.J.S.A. 2C:33-3(e). The Court also recognized that 9-1-1 systems generally record the telephone numbers of callers if they called from a landline, although cellphone callers, like the caller in the case, were not necessarily identifiable. Id. at 219.
Second, the Court considered the relative intrusiveness of a stop, as distinct from vehicle searches or actual arrests. Id. at 220. Third, the court considered the significant public safety risk posed by the erratic or intoxicated driver. Id. at 221. The Court added that the information about the vehicle was sufficiently detailed to assure that the vehicle stopped was the one the caller claimed to observe. Id. at 222.
The principles in Golotta guide our analysis here, notwithstanding obvious differences between the factual scenario in Golotta and this case. First, we look at the source and circumstances of the "tip." The tip did not come from someone from the criminal milieu who might seek some favor in return. The tip came from a citizen, who in this case, expressly stated her concern for public safety. See id. at 219-20 (distinguishing between citizen and criminal informants).
Although the call was not made to a 9-1-1 system, it was nonetheless made to a police telephone system that displayed a caller's number. A person is subject to prosecution if she makes a false report to police, even if not on a 9-1-1 system. See N.J.S.A. 2C:28-4(b). As with a 9-1-1 caller, it is "hard to conceive that a person would place himself or herself at risk of a criminal charge," by making a false call to a police switchboard. Golotta, supra, 178 N.J. at 219. Although a caller may be unaware that his or her number is being displayed, there is no evidence that the caller in this case wished to remain anonymous, unlike the caller in Golotta. Nelson simply never asked the caller for her name.
The caller's report was also subject to greater corroboration than in Golotta. In that case, there was no corroboration of the unlawful act — erratic driving or driving under the influence. Id. at 210. The corroboration was limited to matching a vehicle to the description provided. Ibid. Here, police corroborated that Laura Allocco had a suspended license and had a history of DUI and driving while suspended. Given the caller's indication that the vehicle was not registered to Laura Allocco, we recognize that police could not verify, prior to the stop, that she was indeed the driver of the vehicle the caller described. But the confirmation of Allocco's record nonetheless lent reliability to the caller's report.
This case may be contrasted with the case of an anonymous tip of a "man with a gun," which the United States Supreme Court found insufficient to justify a stop and frisk of a man whose description — a young African-American man in plaid shirt standing at a bus stop — matched that provided by the informant. Florida v. J.L., 529 U.S. 266, 268, 120 S. Ct. 1375, 1377, 146 L. Ed. 2d 254, 259 (2000). The police did not observe any criminal behavior, nor any outward signs of gun possession. Ibid. The Court found insufficient "the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the suspect]." Id. at 271, 120 S. Ct. at 1379, 146 L. Ed. 2d at 261-62. The Court distinguished between a tip's reliability as to identification, as opposed to criminal activity:
An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.
[Id. at 272, 120 S. Ct. at 1379, 146 L. Ed. 2d at 261.]
In this case, the police not only corroborated the identity of the vehicle described by the informant, they also confirmed the defendant's status as an unlicensed driver with a history of DUI. That made it reasonable for the police to rely on the assertion of illegality — driving while unlicensed.
It is of no moment that corroboration of defendant's record was performed by Nelson, as opposed to Greenwood, who effectuated the traffic stop. See State v. Crawley, 187 N.J. 440, 457 ("[I]f the dispatcher . . . had been provided adequate facts from a reliable informant to establish a reasonable suspicion that defendant was armed, common sense tells us that the dispatcher had the power to delegate the actual stop to officers in the field."), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006); State v. Fioravanti, 46 N.J. 109, 122 (1965) ("Probable cause must be judged on the basis of . . . composite information" possessed by police), cert. denied, 384 U.S. 919, 86 S. Ct. 1365, 16 L. Ed. 2d 440 (1966). --------
We recognize that this case does not present an emergent report of erratic driving in progress, which was a significant factor in the Golotta Court's analysis. Nonetheless, the caller expressed concern that Allocco was an "unfit" driver. The caller described not only an unlicensed driver, but one with a record of multiple DUI convictions. As the trial judge observed, it is reasonable to suspect that a person with a history of DUI, who has decided to drive without a license, may pose a significant safety risk--certainly one more significant than say, a report that someone is driving without insurance, or with an overdue inspection sticker. See State v. Carrigan, 428 N.J. Super. 609, 614 (App. Div. 2012) (noting legislation was prompted by "reports of fatal or serious accidents that had been caused by recidivist offenders with multiple prior DWI violations, who nevertheless were driving with a suspended license."), certif. denied, 213 N.J. 539 (2013).
An assessment of reasonable and articulable suspicion "must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced." State v. Davis, 104 N.J. 490, 504 (1986); see also State v. Stovall, 170 N.J. 346, 356 (2002). We are satisfied that police had a reasonable and articulable suspicion to conduct the traffic stop in light of: the reliability of the unidentified but not expressly anonymous report by a concerned citizen to a police telephone switchboard; the corroboration of the informant's identification of the vehicle, and the description of defendant's driving status and violation record; and the threat to public safety posed by unlicensed drivers like defendant.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION