Opinion
DOCKET NO. A-5685-13T4
01-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JASON DOBSON, Defendant-Appellant.
Weinstock & Associates, LLC, attorneys for appellant (Sarah Blumberg-Weinstock, of counsel and on the briefs). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant County Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 13-035. Weinstock & Associates, LLC, attorneys for appellant (Sarah Blumberg-Weinstock, of counsel and on the briefs). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant County Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jason Dobson appeals following his guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50. He challenges the Law Division's denial of his motion to suppress the results of the motor vehicle stop. We affirm.
I.
At the suppression hearing before the Municipal Court, Officer Shawn Owen of the Egg Harbor Township Police Department testified to the following facts. On July 27, 2013, Officer Owen was on patrol during the night shift.
At approximately 4:45 a.m., police dispatch received a call from an unknown resident on the department's non-emergency line. The caller, who wished to remain anonymous, reported hearing screaming in a car loudly enough to wake the caller. The caller said that it sounded like a domestic dispute, and that people had gotten out of the car and it sounded like they were fighting. The caller had called the police because the caller did not know whether the female was okay.
The caller reported that the car was stopped in the middle of the roadway near a particular address on Spruce Avenue. The caller could see the headlights of the stopped car, but it was dark and the caller could not give a description of the car.
Within a couple minutes, Officer Owen started driving northbound up Spruce Avenue in Egg Harbor Township toward the address given by the caller. Then the caller reported that the car left southbound on Spruce Avenue at a high rate of speed.
Shortly thereafter, Sergeant Rzemyk and Officer Cantell, who had started driving up Spruce Avenue ahead of Officer Owen, radioed they observed a black Mercedes driving southbound on Spruce Avenue. Those officers continued on in case there was another vehicle, but they did not see any other vehicles on the road.
Seconds later, Officer Owen saw the Mercedes coming toward him. The Mercedes passed Officer Owen as he was driving northbound on Spruce Avenue in the area of Orchard Road. Spruce Avenue is in a very rural area, mostly farmland, with some houses but no regular neighborhoods. There were no streets intersecting Spruce Avenue between the address given by the caller and Orchard Road. In that stretch, there was no place other than driveways for a car to turn off Spruce Avenue. The Mercedes was the only car on Spruce Avenue at 4:45 a.m. other than the police vehicles. Indeed, it was the only car witnessed by any officer on the roads at that hour.
Officer Owen turned his police vehicle around and approached the Mercedes from behind. He tried to look inside the Mercedes to determine the number of occupants, but could not see into the Mercedes because it had heavily tinted windows. Owen then activated his overhead lights and stopped the Mercedes as it turned onto Mill Road. Owen, an eleven-year veteran police officer, testified he stopped the Mercedes for the following reasons: the caller's report of the domestic dispute; the caller advised that the Mercedes was driving southbound on Spruce Avenue; the Mercedes was the only car on Spruce Avenue; Officer Owen could not see into the Mercedes; and he wanted to make sure that everyone in the car was okay.
Officer Owen approached the Mercedes and spoke to the passenger, who appeared emotional and looked like she had been crying. The passenger later told Officer Cantell that the Mercedes was the vehicle that had been stopped in the roadway on Spruce Avenue, that she and defendant were the persons who had engaged in the domestic dispute, and that they had gotten out, argued, and then gotten back in the Mercedes.
Defendant was charged with DWI, refusal to submit to a breath test, failure to exhibit the Mercedes' registration, reckless driving, and careless driving. In Municipal Court, he moved to suppress the evidence obtained as a result of the motor vehicle stop. After Judge Robert Switzer denied the suppression motion, defendant pled guilty to DWI, and the prosecutor dismissed the other charges. This was defendant's second DWI violation.
Defendant appealed the denial of suppression to the Law Division under Rule 7:5-2(c)(2). Judge John Porto also denied suppression, finding Officer Owen credible and that he had "reasonable, articulable suspicion to stop [defendant's] vehicle." Based on defendant's guilty plea, the judge imposed the same sentence imposed by the Municipal Court: forty-eight hours in the Intoxicated Drivers Resource Center, two years' loss of license followed by one year of ignition interlock, thirty days of community service, a $506 fine, $33 in court costs, a $50 violent crime compensation assessment, a $75 safe streets assessment, and a $200 surcharge.
II.
Defendant appeals to this court, arguing:
THE TRIAL COURT ERRED IN FINDING THERE WAS A REASONABLE AND ARTICULABLE SUSPICION TO JUSTIFY THE MOTOR VEHICLE STOP.
We must hew to our "exceedingly narrow" standard for reviewing a suppression ruling by the Law Division on de novo appeal from the Municipal Court. State v. Locurto, 157 N.J. 463, 470 (1999). We owe particular "'deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Stas, 212 N.J. 37, 49 (2012) (citation omitted). The need for deference is even "'more compelling'" when the Municipal Court and the Law Division have agreed on a factual finding. Id. at 49 n.2 (citation omitted).
"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). "An appellate court should not disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "Thus, appellate courts should reverse only when the trial court's determination is 'so clearly mistaken "that the interests of justice demand intervention and correction."'" State v. Gamble, 218 N.J. 412, 425 (2014) (citation omitted).
III.
The United States and New Jersey Constitutions permit a brief investigative stop of a vehicle based on reasonable suspicion. Navarette v. California, 572 U.S. ___, ___, 134 S. Ct. 1683, 1687, 188 L. Ed. 2d 680, 686 (2014); State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). An investigatory stop "'is valid if it 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. Mann, 203 N.J. 328, 338 (2010) (citation omitted).
Reasonable suspicion "requires some minimal level of objective justification for making the stop." Amelio, supra, 197 N.J. at 211-12. "Although a mere 'hunch' does not create reasonable suspicion, the level of suspicion required is 'considerably less than proof of wrongdoing by a preponderance of the evidence,' and 'obviously less' than is necessary for probable cause." Gamble, supra, 218 N.J. at 428 (citation omitted).
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.The caller's "'veracity,' 'reliability,' and 'basis of knowledge'" are "relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard." Id. at 328-29, 110 S. Ct. at 2415, 110 L. Ed. 2d at 308 (citation omitted); accord Amelio, supra, 197 N.J. at 212.
[Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 308 (1990).]
Here, the caller's information, if believed, gave rise to reasonable suspicion of criminal activity. The awoken resident clearly reported disorderly conduct by persons "caus[ing] public inconvenience, annoyance or alarm" by engaging in "fighting or threatening, or in violent or tumultuous behavior." N.J.S.A. 2C:33-2(a). The screaming and fighting also gave a reasonable suspicion of the offense of simple assault, even if it was "a fight or scuffle entered into by mutual consent." N.J.S.A. 2C:12-1(a).
Furthermore, the caller reported a "domestic disturbance" involving fighting between a man and a woman. Our Legislature has declared that "domestic violence is a serious crime against society," and that "the primary duty of a law enforcement officer when responding to a domestic violence call is to enforce the laws allegedly violated and to protect the victim." N.J.S.A. 2C:25-18. That duty was particularly pertinent as the caller was uncertain if the female was okay, and she was apparently still with the male when the car departed at a high rate of speed. Even though they were now "in a motor vehicle, the police had a duty to investigate the report of a domestic disturbance" both to enforce the law and to protect a potential victim. Amelio, supra, 197 N.J. at 215.
Defendant argues that the police should not have acted on the resident's call because it was anonymous. "When an anonymous tip is involved, additional factors must be considered to generate the requisite level of reasonable and articulable suspicion." State v. Privott, 203 N.J. 16, 26 (2010). "[A]s a general rule, '[a]n anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity,'" State v. Golotta, 178 N.J. 205, 228 (2003) (citation omitted), and "'seldom demonstrates the informant's basis of knowledge or veracity.'" Gamble, supra, 218 N.J. at 428 (quoting White, supra, 496 U.S. at 329, 110 S. Ct. at 2415, 110 L. Ed. 2d at 308). Moreover, anonymity may enable the tipster to escape "'being held accountable for a false tip.'" State v. Hathaway, 222 N.J. 453, 471 (2015) (citation omitted).
"[H]owever, there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375, 1378, 146 L. Ed. 2d 254, 260 (2000) (quoting White, supra, 496 U.S. at 326, 110 S. Ct. at 2414, 110 L. Ed. 2d at 306). For example, in Alabama v. White, an anonymous caller predicted that an identified woman with drugs would get into a described car at a particular time and drive from an apartment building to a motel. White, supra, 496 U.S. at 327, 110 S. Ct. at 2414, 110 L. Ed. 2d. at 306-07. The officers saw an unidentified woman get into the car; however, they stopped the car before it reached the motel. Id. at 327, 110 S. Ct. at 2414, 110 L. Ed. 2d at 307. Nonetheless, the Court upheld the stop because the timing and route of her drive matched the tip. Id. at 331, 110 S. Ct. at 2417, 110 L. Ed. 2d. at 309-10. "When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop." Id. at 332, 110 S. Ct. at 2417, 110 L. Ed. 2d. at 310.
Here, the caller's information was corroborated by the police in a similar way. The caller told police dispatch that the car drove southbound on Spruce Avenue. Just after that, officers saw a Mercedes driving southbound on Spruce Avenue. Thus, the officers verified both "the time of departure" and the "route" given by the caller. See id. at 331, 110 S. Ct. at 2417, 110 L. Ed. 2d. at 309-10. "[T]he independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller." Id. at 331-32, 110 S. Ct. at 2417, 110 L. Ed. 2d. at 310.
Although the darkness prevented the caller from being able to describe the car's appearance, the caller's report of the car's "location and bearing" was confirmed within moments by the officers. Golotta, supra, 178 N.J. at 222. Moreover, as Judge Porto found, defendant's Mercedes was "the only vehicle on the roadway." The very rural location, the extremely late hour, the total absence of other traffic, and the lack of any intersecting roads on which the car could have exited or another car entered, made sufficiently "'certain that the vehicle stopped [was] the same as the one identified by the caller.'" Ibid. (citation omitted).
Of course, the caller here was making an observation rather than a prediction as in White. However, "there is more than one way to" corroborate a tip from an anonymous source. Navarette, supra, 572 U.S. at ___, 134 S. Ct. at 1692, 188 L. Ed. 2d at 691. In Navarette, the United States Supreme Court ruled that an anonymous caller who "claimed eyewitness knowledge of the alleged dangerous" activity evidenced a "basis of knowledge [that] lends significant support to the tip's reliability." Id. at ___, 134 S. Ct. at 1689, 188 L. Ed. 2d at 687. The Court in Navarette noted that such eyewitness reports of outward criminal activity stand "in contrast to J.L., where the tip provided no basis for concluding that the tipster had actually seen the gun. Even in White, where we upheld the stop, there was scant evidence that the tipster had actually observed cocaine in the station wagon." Navarette, supra, 572 U.S. at ___, 134 S. Ct. at 1689, 188 L. Ed. 2d at 687-88 (citations omitted). The Court distinguished those cases, which involved "'whether th[e] person is carrying hidden contraband,'" from cases where the criminality was on public display. Id. at ___, 134 S. Ct. at 1689, 188 L. Ed. 2d at 688 (quoting J.L., supra, 529 U.S. at 271, 120 S. Ct. at 1379, 146 L. Ed. 2d at 260). "That sort of contemporaneous report has long been treated as especially reliable." Id. at ___, 134 S. Ct. at 1689, 188 L. Ed. 2d at 688.
Our Supreme Court has also agreed that the "'emphasis on the predictive aspects of an anonymous tip may be less applicable to tips purporting to describe contemporaneous, readily observable criminal actions[.]'" Golotta, supra, 178 N.J. at 215 (citation omitted).
"Unlike with clandestine crimes such as possessory offenses, including those involving drugs or guns, where corroboration of the predictive elements of a tip may be the only means of ascertaining the informant's basis of knowledge, in erratic driving cases the basis of the tipster's knowledge is likely to be apparent. Almost always, it comes from his eyewitness observations, and there is no need to verify that he possesses inside information."
[Ibid. (citation omitted).]
Here, it was a reasonable inference that the caller had a valid basis of knowledge, as the caller was a resident and apparently an eyewitness giving a play-by-play of the screaming inside the car stopped in the middle of Spruce Avenue, the fighting outside the car, and then the car driving off at a high rate of speed. "An informant's basis of knowledge is sufficient 'if the tip itself relates expressly or clearly how the informant knows of the criminal activity.'" State v. Jones, 179 N.J. 377, 389 (2004)(citation omitted).
Another factor to be considered is that "the greater the threat to public safety, the greater the need may be for prompt action, and thus allowances must be made for the fact that perfect knowledge is often not attainable at the moment the police must act." Hathaway, supra, 222 N.J. at 472 (citing Golotta, supra, 178 N.J. at 221-22). "[A] reduced degree of corroboration" is required for "'tips purporting to describe contemporaneous, readily observable criminal actions'" and indicating that the perpetrator poses an "immediate safety risk." Golotta, supra, 178 N.J. at 215, 221, 227 (citations omitted).
Navarette and Golotta both involved observations of dangerous driving, but their rationale applies equally to violent crime and domestic violence. Like drunk driving, domestic violence often results in death or serious bodily injury. See N.J.S.A. 2C:25-21. Thus, the caller's information "convey[ed] an unmistakable sense that the caller ha[d] witnessed an ongoing offense that implicate[d] a risk of imminent death or serious injury to a particular person[.]" Golotta, supra, 178 N.J. at 221-22.
Judge Porto found that the stop was reasonable because the safety of the female was at risk. "Indeed, the police would have been derelict in their duty had they not stopped the vehicle." State v. Zapata, 2 97 N.J. Super. 160, 174 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998).
Finally, "the narrow question is whether there was a sufficient basis to stop the vehicle, not whether grounds existed for the police to search its contents or arrest its driver," which are "more intrusive forms of conduct." Golotta, supra, 178 N.J. at 226. "[I]n the hierarchy of interests, '[t]here is a lesser expectation of privacy in one's automobile[.]'" Id. at 220 (citation omitted). "[T]hat lesser privacy interest and the nature of the intrusion (an investigatory stop, not a full-blown search . . . ) are relevant in assessing the reasonableness of the government's conduct." Ibid.
In determining if there was reasonable suspicion, "a reviewing court must assess whether 'the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate.'" Mann, supra, 203 N.J. at 338 (citation omitted). Considering all of the facts available, we agree with the trial court that the record contains sufficient facts to demonstrate Officer Owens had reasonable suspicion to stop the Mercedes.
"It is true that not every detail mentioned by the tipster was verified[.]" White, supra, 496 U.S. at 331, 110 S. Ct. at 2417, 110 L. Ed. 2d. at 309. Officer Owens could not see in the heavily-tinted windows to verify the number of occupants in the Mercedes, but that hardly allayed concern over the female's safety. "Nor did the absence of additional suspicious conduct, after the vehicle was first spotted by an officer, dispel the reasonable suspicion . . . . It is hardly surprising that the appearance of a marked police car would inspire more careful driving for a time." Navarette, supra, 572 U.S. at ___, 134 S. Ct. at 1691, 188 L. Ed. 2d at 690. Thus, it is not dispositive that none of the officers saw the Mercedes speeding or committing any other motor vehicle infractions, or saw its occupants commit further domestic violence.
Like Navarette and White, "this is 'a close case.'" Navarette, supra, 572 U.S. at ___, 134 S. Ct. at 1692, 188 L. Ed. 2d at 691 (quoting White, supra, 496 U.S. at 332, 110 S. Ct. at 2417, 110 L. Ed. 2d at 310). However, even where it is a "close call[]" "whether the [police] possessed the necessary suspicion," "[t]he motion judge was entitled to draw inferences from the evidence and make factual findings based on his 'feel of the case,' and those findings were entitled to deference unless they were 'clearly mistaken' or 'so wide of the mark' that the interests of justice required appellate intervention." Elders, supra, 192 N.J. at 245, 250 (citation omitted). "A disagreement with how the motion judge weighed the evidence in a close case is not a sufficient basis for an appellate court to substitute its own factual findings to decide the matter." Id. at 245.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION