Opinion
DOCKET NO. A-3312-14T3
04-20-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHERYL NORMAN, Defendant-Appellant.
Steven E. Braun argued the cause for appellant. Robert J. Wisse, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Wisse, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 6006. Steven E. Braun argued the cause for appellant. Robert J. Wisse, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Wisse, on the brief). PER CURIAM
Defendant Cheryl Norman appeals from an order denying her motion to suppress a warrantless traffic stop, which led to her conviction after a conditional plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50. After a de novo hearing, the Law Division judge denied the motion and remanded the matter to the municipal court for imposition of sentence. Upon remand, defendant was given the same sentence imposed prior to the municipal appeal. Defendant argues that the police lacked a reasonable, articulable suspicion because they relied upon a citizen's complaint that defendant was operating her motor vehicle in an erratic manner. Having reviewed defendant's arguments in light of the facts and applicable legal principles, we affirm.
We discern the following facts from the testimonial record of the suppression hearing. Sergeant Colin Tarpey of the Wayne Police Department responded to a call from the dispatch unit. After receiving the call, Tarpey attempted to locate a vehicle based upon the description provided and the vehicle's route of travel. As he traveled on Nevins Road to the Residence Inn parking lot, Tarpey observed a green Jeep Liberty parked in the complex which matched the description of the vehicle he was given by dispatch. Tarpey pulled behind the vehicle, got out of his vehicle, and approached the driver. The driver of the vehicle was later identified as defendant.
Due to the belief that the parties stipulated to the admission of the police report, the municipal court judge's findings included information from the report, which included reference to the caller as an "identified citizen." Upon appeal, the Law Division judge noted, "[T]he record does not indicate that the reports were actually admitted, which would mean that they really cannot be considered in any type of decision." As such, we consider only the testimonial record as did the Law Division judge.
Defense counsel objected as hearsay to the specific information received by Tarpey from dispatch. When asked what he did upon receipt of information from dispatch, Tarpey testified that he "traveled to Nevins Road to the Residence Inn parking lot[,]" where he observed "[a] green Jeep Liberty parked in [] the parking lot[.]"
Tarpey observed that the vehicle was running and the heat was on. After defendant lowered the driver's side window, Tarpey had a brief conversation with her which lasted about a minute. During this conversation, Tarpey detected the odor of an alcoholic beverage coming from inside of the car, and observed that defendant was "sloshed." Tarpey then requested defendant's paperwork and inquired where she was coming from. Defendant responded that she was coming from a bar in Riverdale.
While Tarpey was engaged in conversation with defendant, Officer Ryan Vallaro arrived at the scene. After approaching the vehicle, Vallaro spoke with defendant and also detected a strong odor of alcohol emitting from her. Vallaro asked defendant if she had consumed any alcohol to which she admitted drinking a couple beers and two shots of Jägermeister at a bar in Riverdale. Vallaro observed that defendant's eyes were glassy and bloodshot, and that her speech was extremely slurred. Neither officer observed defendant driving her vehicle as she was already parked when Tarpey arrived at the Residence Inn parking lot.
After the hearing, the municipal court judge denied defendant's motion to suppress. Subsequent to the denial of the motion to suppress, the result of defendant's Alcotest, which recorded a blood alcohol content of .25, was moved into evidence. Thereafter, defendant entered a conditional guilty plea to her third DWI offense. The judge imposed a sentence of 180 days in the county jail along with a mandatory suspension of her driving privileges for ten years, ignition interlock, and fines and penalties. Defendant appealed to the Law Division. The sentence was stayed pending appeal.
Subsequent to argument by counsel, the Law Division judge made the following factual findings:
Sergeant Colin Tarpey, who was employed by the Wayne Police Department for [twenty-one] years, testified that on [September 14, 2013], he received a call from dispatch, and as a result, he intended to locate an erratic driver coming from the area of Indian Road.
He traveled to Nevins Road to the [Residence] Inn parking lot. He observed a green Jeep Liberty, which fit the description given to him which was in the parking lot. He pulled up behind it, got out of the car, and addressed the driver. The vehicle was running and the heat was on.
Defendant lowered her window and he asked for her paperwork and where she was
coming from. He immediately noticed the odor of an alcoholic beverage. He stated that he immediately noticed that she was sloshed. She stated she was coming from a bar in Riverdale.
On cross-examination he stated that . . . to stop the car, he relied on the citizen's phone call and not his observations. Officer Ryan [Vallaro] testified that he arrived on the scene, he spoke with defendant and noticed a strong odor of alcoholic beverage coming from her. He did not see her operating the motor vehicle, but saw that it was running.
The judge then addressed the applicability of State v. Locurto, 157 N.J. 463 (1999), and State v. Golotta, 178 N.J. 205 (2003). The judge held:
Applying these principles to the case, I find Sergeant Tarpey had an articulate and reasonable suspicion to approach defendant's motor vehicle and ask for her paperwork and where she was coming from.
The call came from a citizen who observed an erratic driver. It was in the early morning hours. The summons indicate[s] the event occurred at 3:37 a.m.
The caller described the vehicle as a green Jeep Liberty which was the same type of vehicle observed by Sergeant Tarpey in the Residence Inn parking lot. In addition, the police reacted to the call immediately.
. . . .
. . . Articulable suspicion can be established by an anonymous tip, if the police corroborate enough of the tipster's information to imply that the tipster must
possess inside knowledge about the details that the police could not otherwise observe.
The judge denied the motion to suppress. This appeal followed. On appeal, defendant raises the following arguments:
POINT I
THE LAW DIVISION ERRONEOUSLY RELIED UPON THE INFORMATION PROVIDED BY AN INFORMANT AS THE INFORMATION WAS HEARSAY AND ITS CONSIDERATION DEPRIVED MS. NORMAN OF HER CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HER PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
POINT II
THE STATE FAILED TO ESTABLISH REASONABLE AND ARTICULABLE SUSPICION TO INVESTIGATE MS. NORMAN.
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 required appellate intervention." State v. Elders, 192 N.J. 224, 245 (2007) (citing 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); Locurto, supra, 157 N.J. at 470; Golotta, supra, 178 N.J. at 213. 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 defendant on suspicion she was driving erratically. The answer turns on the reliability of the unidentified caller's report.
Since the record under review does not contain the status of the informant, for purpose of our determination, we will consider the matter as though the tip was anonymous. 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 State v. Amelio, 197 N.J. 207, 212 (2008); 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. We begin by looking 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, expressed concern for public safety by reporting a vehicle's erratic operation. See id. at 219-20 (distinguishing between citizen and criminal informants). If the informer is a "'concerned citizen' or a known person[,]" Amelio, supra, 197 N.J. at 212-13 (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 390 (2000)), less scrutiny attaches to the informant's reliability because a citizen "acts with an intent to aid the police in law enforcement because of his concern for society or for his own safety." Ibid. (internal citation and quotation marks omitted); see also State v. Williams, 251 N.J. Super. 617, 626-27 (App. Div. 1991).
Here, it is unknown whether the call was made to a 9-1-1 system. Nonetheless, the call was made to a police telephone system that presumably displayed the caller's number. A person is subject to prosecution if he or she knowingly makes a false report to police, even if not on a 9-1-1 system. 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. This is so even if a caller may be unaware that his or her number is being displayed.
In this case, the police not only corroborated the identity of the vehicle described by the citizen informant, they also confirmed that the specifically described vehicle, a green Jeep Liberty, was in a parking lot at the Residence Inn — a location referenced in the dispatch report. As well, there was a report of erratic driving in progress, which is a significant factor in the Golotta Court's analysis. The report was also close in time to Tarpey's observation of defendant's vehicle. See id. at 222.
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 the police had a reasonable and articulable suspicion to conduct the stop in light of: the reliability of the concerned citizen providing detailed information to a police telephone switchboard; the corroboration of the informant's identification of the vehicle, and the vehicle's location; as well as the danger to public safety posed by erratic operation of a motor vehicle.
We disagree with the State's argument that Tarpey conducted a "field inquiry" rather than an investigatory stop. Tarpey testified that defendant, despite being in a parked vehicle, was not free to leave. --------
Finally, defendant's request for a stay pending petition for certification is denied. State v. Robertson, 438 N.J. Super. 47, 74-76 (App. Div. 2014), certif. granted, 221 N.J. 287 (2015).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION