Superior Court of New Jersey, Appellate Division.Dec 22, 2011
32 A.3d 1152 (N.J. Super. 2011)
32 A.3d 1152423 N.J. Super. 365


STATE of New Jersey, Plaintiff–Respondent, v. Thomas W. BERNOKEITS, Jr., Defendant–Appellant.

Kevin S. Quinlan, Tuckerton, attorney for appellant. Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Assistant Prosecutor, of counsel; Robert Cassidy, Assistant Prosecutor, on the brief).

Kevin S. Quinlan, Tuckerton, attorney for appellant. Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Assistant Prosecutor, of counsel; Robert Cassidy, Assistant Prosecutor, on the brief).


The opinion of the court was delivered by


We are asked to decide whether standard, roadside field sobriety testing requires the police to have probable cause to arrest or to search, or may it be undertaken on the basis of reasonable suspicion alone.

The facts are essentially undisputed. On July 31, 2010, at approximately 3:30 a.m., Seaside Heights Police Officer John Moritz observed defendant operating a motor vehicle with tinted windows and loud exhaust. After following him for about one block, Moritz pulled defendant's vehicle over for the observed equipment violations. Moritz approached defendant and requested his driver's credentials, which defendant then produced. Appearing a bit scared and nervous, defendant asked why he was stopped, and Moritz explained the muffler was excessively noisy and the windows were completely tinted black, preventing the officer from seeing the inside of the vehicle. Detecting a strong odor of alcohol coming from defendant's breath, Moritz inquired whether defendant had been drinking. Defendant admitted to consuming a beer that night at Bamboo, a local bar; however, Moritz sensed the alcohol smelled more like hard liquor and not beer. Based on his observations and defendant's admissions, Moritz requested defendant exit the vehicle to perform field sobriety testing, “to make sure that he was okay to drive.”

Thereafter, defendant was arrested and charged with driving while intoxicated, N.J.S.A. 39:4–50; excessive muffler noise, N.J.S.A. 39:3–70; and improper safety glass, N.J.S.A. 39:3–75. Challenging the administration of the field sobriety testing for want of probable cause, defendant filed a motion to suppress, which the municipal court judge denied, reasoning:

[L]ooking at the totality of the circumstances, the strong odor of alcohol from his breath, the admission that he had at least a beer, that it was 3:30 in the morning[,] and that he said he was at the Bamboo Bar ... all of that certainly rise[s] ... to constitute a reasonable and articulable suspicion that at least the officer had a duty to go forward to ascertain by the use of the psychophysicals whether or not he formulated the opinion he was or was not under the influence. Subsequently, defendant entered a conditional guilty plea to the DWI charge and was sentenced to a mandatory seven-month loss of his license, twelve hours in the Intoxicated Driver Resource Center (IDRC), and various fines.

Defendant then appealed to the Law Division which heard the matter de novo and denied the suppression motion. In rendering his decision, the judge concluded that “[b]ased upon the location, the time, the odor, the nervousness and the admission of consumption” of alcohol, the officer had reasonable suspicion that another offense was being committed and that he was justified in broadening the initial inquiry. Defendant was again found guilty of DWI and the municipal court sentence was reimposed.

This appeal follows.

In challenging the legal standard employed by the courts below, defendant contends that because the command to submit to field sobriety testing constitutes a de facto arrest, the police action may only be sustained upon a showing of probable cause, which is absent here. While we agree that the facts of record do not support a finding of probable cause, they do amount to a reasonable articulable suspicion that defendant was driving while intoxicated and, therefore, justify the added detention required to administer the field sobriety tests.

As a threshold matter, no one disputes the legitimacy of the initial motor vehicle stop based on the officer's observed motor vehicular equipment violations. See, e.g., State v. Moss, 277 N.J.Super. 545, 547, 649 A.2d 1349 (App.Div.1994). A motor vehicular violation, no matter how minor, justifies a stop without any reasonable suspicion that the motorist has committed a crime or other unlawful act. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979); see also State v. Garland, 270 N.J.Super. 31, 42–43, 636 A.2d 541 (App.Div.), certif. denied, 136 N.J. 296, 642 A.2d 1005 (1994).

Nor can it be seriously questioned that the resultant request of a motorist to exit the vehicle is constitutionally permissible. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331, 337 (1977); State v. Smith, 134 N.J. 599, 611, 637 A.2d 158 (1994). This is because once a vehicle is lawfully stopped, a law enforcement officer may conduct an investigation reasonably related in scope to the circumstances that justified the traffic stop. See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968). Where the police have already lawfully decided that the driver shall be briefly detained, the additional intrusion of requesting him to step out of his vehicle has been described as “de minimis.” Mimms, supra, 434 U.S. at 111, 98 S.Ct. at 333, 54 L.Ed.2d at 337. “What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.” Ibid.

Here, of course, the encounter went beyond a mere directive to exit the vehicle and encompassed the added command to submit to field sobriety testing. To be sure, the temporary detention of an individual during an automobile stop constitutes a “seizure” of the person and implicates Fourth Amendment concerns. Whren v. United States, 517 U.S. 806, 809–10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95 (1996). However, such brief investigatory stops short of arrest are permitted where police officers have a reasonable suspicion of ongoing criminal or unlawful activity. Terry, supra, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. Even though the initial stop was for a motor vehicle violation, a police officer is not precluded from broadening the inquiry of his stop “[i]f, during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances ‘give rise to suspicions unrelated to the traffic offense.’ ” State v. Dickey, 152 N.J. 468, 479–80, 706 A.2d 180 (1998) (quoting United States v. Johnson, 58 F.3d 356, 357 (8th Cir.), cert. denied, 516 U.S. 936, 116 S.Ct. 348, 133 L.Ed.2d 245 (1995)); see also State v. Baum, 199 N.J. 407, 424, 972 A.2d 1127 (2009). Thus, in order to continue to detain a motorist once he is asked to exit the vehicle, a police officer must have a reasonable, articulable suspicion that the person is involved in criminal or unlawful activity beyond that which initially justified the stop. State v. Davis, 104 N.J. 490, 504, 517 A.2d 859 (1986). Reasonable suspicion is “a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.” Ashcroft v. al-Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2088, 179 L.Ed.2d 1149, 1164 (2011); see also State v. Carvajal, 202 N.J. 214, 228, 996 A.2d 1029 (2010); State v. Thomas, 110 N.J. 673, 678, 542 A.2d 912 (1988).

It is well-settled that the touchstone of the Fourth Amendment is reasonableness, Terry, supra, 392 U.S. at 37–38, 88 S.Ct. at 1888, 20 L.Ed.2d at 915–16, and reasonableness, in turn, is measured in objective terms by examining the totality of circumstances. Davis, supra, 104 N.J. at 504, 517 A.2d 859. In applying this test, courts give weight to “ ‘the officer's knowledge and experience’ as well as ‘rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.’ ” State v. Citarella, 154 N.J. 272, 279, 712 A.2d 1096 (1998) (quoting State v. Arthur, 149 N.J. 1, 10, 691 A.2d 808 (1997)). In any given case, the reasonableness of the investigatory detention is a function of the degree and kind of intrusion upon the individual's privacy balanced against the need to promote governmental interests. Davis, supra, 104 N.J. at 504, 517 A.2d 859.

Granted, an investigative stop may become a de facto arrest when “ ‘the officers' conduct is more intrusive than necessary for an investigative stop.’ ” Dickey, supra, 152 N.J. at 478, 706 A.2d 180 (quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir.1985)). While there is no “bright line” test to determine when an investigative stop becomes a de facto arrest, courts have identified several factors relevant to this determination, including, most significantly, the temporal duration of the stop. Dickey, supra, 152 N.J. at 478–79, 706 A.2d 180. While there is “no rigid time limitation on Terry stops,” United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 615 (1985), a detention may become too long if it involves “delay unnecessary to the legitimate investigation of the law enforcement officers.” Id. at 687, 105 S.Ct. at 1576, 84 L.Ed.2d at 616. An important consideration in this regard “is whether the officer used the least intrusive investigative techniques reasonably available to verify or dispel his suspicion in the shortest period of time reasonably possible.” Davis, supra, 104 N.J. at 504, 517 A.2d 859.

“ ‘Another factor is the degree of fear and humiliation that the police conduct engenders.’ ” Dickey, supra, 152 N.J. at 479, 706 A.2d 180 (quoting United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir.1994), cert. denied, 514 U.S. 1113, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995)). Moreover, “ ‘transporting a suspect to another location or isolating him from others may also give rise to an arrest,’ ” Dickey, supra, 152 N.J. at 479, 706 A.2d 180 (quoting Bloomfield, supra, 40 F.3d at 917); as may handcuffing or confining him in a police car. Dickey, supra, 152 N.J. at 479, 706 A.2d 180; see also United States v. Willis, 967 F.2d 1220, 1224 (8th Cir.1992).

Despite the fact that none of these circumstances occurred here, defendant asks us to hold that the field sobriety testing he underwent is the equivalent of a full blown arrest and therefore must be supported by the more stringent standard of probable cause. We reject this notion. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317, 336 (1984) (holding that a police officer requesting the defendant to perform a field sobriety test in a public place “cannot fairly be characterized as the functional equivalent of formal arrest”); cf. State v. Green, 209 N.J.Super. 347, 350, 507 A.2d 743 (App.Div.1986) (holding that a DWI suspect is not entitled to Miranda