STATE OF NEW JERSEY VS. JENNIFER R. WIGGINS(15-01-0010, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1487-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JENNIFER R. WIGGINS,
Defendant-Appellant.
___________________________________
Submitted May 2, 2017 – Decided May 31, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Indictment No. 15-01-0010.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Arielle E. Katz,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
The principal issue in this appeal pertains to the community
caretaking exception to the warrant requirement. See, e.g., Cady
v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed.
2d 706, 714-15 (1973); State v. Scriven, 226 N.J. 20, 38 (2016);
State v. Bogan, 200 N.J. 61, 78-80 (2009); State v. Diloreto, 180
N.J. 264, 275-76 (2004). Invoking that exception to justify a
motor vehicle stop, the trial court denied defendant's motion to
suppress drugs and weapons discovered after the stop. Defendant
Jennifer Wiggins subsequently pleaded guilty to two counts of
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b), and fourth-degree possession of marijuana, N.J.S.A. 2C:35-
10(a)(3). Pursuant to the plea agreement, the court sentenced her
to an aggregate term of five years imprisonment, with forty-two
months of parole ineligibility.
Defendant challenges the court's denial of her suppression
motion. She also contends, for the first time on appeal, that her
conviction was barred by L. 2013, c. 117. We affirm.
I.
The trial court credited the testimony of the sole witness
at the suppression hearing, Vineland Police Officer Mustafa
Ozdemir. He testified that shortly before midnight on September
2, 2013, while working alone on drunk driving patrol, he observed
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a Honda Accord with a non-working center brake light1 as it
approached an intersection. Viewing the non-working light as a
safety hazard, Ozdemir performed a traffic stop in order to inform
the driver the light was not working. He admitted that he also
believed the non-working light was a motor vehicle violation.2
Ozdemir parked behind the Honda and cautiously approached the
vehicle on the passenger side. He observed a frontseat passenger
hand a bag of green vegetation to a backseat passenger. At that
point, the officer's concern about the brake light apparently
receded. The officer then illuminated his flashlight, announced
his presence, and asked the driver for credentials. During this
initial exchange, he detected the odor of burnt marijuana and
noticed that the three occupants appeared to have bloodshot eyes.
Backup soon arrived. In the course of the police officers'
subsequent investigation, they seized marijuana; discovered and
seized one handgun and crack cocaine in the possession of a
1
Also called a "cyclops brake light," the light is defined under
N.J.S.A. 39:3-66.3 as a "high-mounted rear stoplight on the
vertical centerline."
2
He stated, "As part of my community care taking, as I explained
earlier, you — we have — a reasonable person would believe that a
motor vehicle violation was, in fact, occurring. And, as part of
the community care taking, one of our duties is to advise the
community of possible hazards."
3 A-1487-15T1
passenger who was patted down; and discovered another handgun
partly under the front passenger seat, which was later seized.3
The trial judge credited the officer's stated reason for
stopping the vehicle — to inform the driver of the non-working
light. The court rejected the argument that reference to the
light was a pretext for an investigatory stop. In the judge's
view, the officer's cautious approach to the vehicle was not
inconsistent with his purpose in conducting the stop.
The court relied in part on three of our decisions sustaining
traffic stops based on the community caretaking exception: State
v. Cohen, 347 N.J. Super. 375 (App. Div. 2002), State v. Martinez,
260 N.J. Super. 75 (App. Div. 1992), and State v. Goetaski, 209
N.J. Super. 362 (App. Div.), certif. denied, 104 N.J. 458 (1986),
which we discuss at greater length below. The judge concluded
that although a non-functioning center brake light was not then a
motor vehicle violation, the center light nonetheless enhanced
vehicle safety. Its inoperability therefore posed a safety hazard,
and the officer was justified in stopping the vehicle under the
community caretaking exception.
On appeal, defendant contends:
3
According to the trial judge, a vehicle search pursuant to a
warrant also led to the seizure of bullets, as well as heroin and
additional cocaine. Defendant does not challenge the legality of
any of the post-stop searches and seizures.
4 A-1487-15T1
POINT I
THE STOP OF THE DEFENDANT'S CAR, PURPORTEDLY
JUSTIFIED UNDER THE "COMMUNITY CARETAKING"
EXCEPTION TO THE WARRANT REQUIREMENT,
CONSTITUTED AN UNLAWFUL SEIZURE, AND ITS
RESULT MUST THEREFORE BE SUPPRESSED. U.S.
CONST., AMEND. IV; N.J. CONST. (1947), ART.
1, PAR. 7.
POINT II
THE SEIZURE OF GUNS OCCURRED DURING THE
STATUTORY AMNESTY PERIOD. ACCORDINGLY,
POSSESSION OF THOSE GUNS CANNOT CONSTITUTE A
CRIME, AND DEFENDANT'S PLEA MUST BE VACATED.
(NOT RAISED BELOW).
II.
On a motion to suppress, we are bound to defer to the trial
court's findings supported by sufficient credible evidence in the
record, particularly when they are grounded in the judge's feel
of the case and ability to assess the witnesses' demeanor and
credibility. State v. Robinson, 200 N.J. 1, 15 (2009); State v.
Elders, 192 N.J. 224, 243-44 (2007). We review issues of law de
novo. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).
"The community-caretaking doctrine recognizes that police
officers provide a wide range of social services outside of their
traditional law enforcement and criminal investigatory roles."
Scriven, supra, 226 N.J. at 38 (internal quotation marks and
citations omitted). The doctrine provides an independent
justification for intrusions into citizens' liberty that would
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otherwise require a showing of probable cause or reasonable and
articulable suspicion of criminal behavior. Diloreto, supra, 180
N.J. at 276. In applying the doctrine, the courts have long
recognized the importance of law enforcement's concern for the
proper and safe operation of automobiles. See Cady, supra, 413
U.S. at 441, 93 S. Ct. at 2528, 37 L. Ed. 2d at 714-15 (establishing
the doctrine within the context of state regulation of vehicles).
Our Supreme Court has found that the community caretaker role
permits officers to "check on the welfare or safety of a citizen
who appears in need of help on the roadway without securing a
warrant or offending the Constitution." Scriven, supra, 226 N.J.
at 38.
The doctrine entails a two-part inquiry. First, a court must
ask whether the officer has reacted to an objectively reasonable
community concern. Id. at 39 (stating that officers must have an
"objectively reasonable basis" to stop a vehicle to provide aid
or check a motorist's welfare); Diloreto, supra, 180 N.J. at 278
("[T]he caretaker doctrine permits the police to exceed a field
inquiry's level of intrusiveness, provided that their action is
. . . objectively reasonable under the totality of
circumstances."); see also State v. Drummond, 305 N.J. Super. 84,
88 (App. Div. 1997).
6 A-1487-15T1
That concern must serve as a distinct motivation for the
officer's conduct, divorced from any desire to further a criminal
investigation. In other words, community caretaking may not serve
as a pretext for a warrantless intrusion into a citizen's liberty
that does not satisfy another warrant exception. Bogan, supra,
200 N.J. at 77; see Diloreto, supra, 180 N.J. at 280. However,
the "divorce" between the two police functions "need only relate
to a sound and independent basis for each role, and not to any
requirement for exclusivity in terms of time or space." Bogan,
supra, 200 N.J. at 77 (quoting State v. D'Amour, 834 A.2d 214, 217
(N.H. 2003)). Notably, an officer may engage in community
caretaking concurrently with a criminal investigation. Ibid.
Second, the court must discern whether the actions taken by
an officer pursuant to his community caretaking remained within
the limited scope justified by the caretaking function. As with
all police stops, the officer's conduct must be "reasonably related
in scope to the circumstances which justified the interference in
the first place." State v. Dickey, 152 N.J. 468, 476 (1998)
(quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20
L. Ed. 2d 889, 905 (1968)). Moreover, an officer's "community
caretaking inquiry must not be 'overbearing or harassing in
nature.'" Drummond, supra, 305 N.J. Super. at 89 (quoting State
v. Davis, 104 N.J. 490, 503 (1986)).
7 A-1487-15T1
As these legal standards imply, the two-part application of
the community caretaking doctrine is a fact-sensitive inquiry. In
several cases, we have found that police had an objectively
reasonable basis to engage in community caretaking. For example,
in Cohen, supra, 347 N.J. Super. at 380-81, we stated that police
were authorized to conduct a stop to inspect darkly-tinted windows
that obstructed vision and posed an apparent "hazardous vehicular
condition." In Martinez, supra, 260 N.J. Super. at 77-78, we
authorized a stop of a vehicle travelling less than ten m.p.h. in
a twenty-five m.p.h. residential zone without flashers at 2:00
a.m. because there were reasonable concerns that the driver was
in distress, the vehicle was disabled, or the slow driving posed
a hazard to other motorists. And in Goetaski, supra, 209 N.J.
Super. at 364-65, we held the officer was justified in stopping a
motorist driving slowly at 4:00 a.m., with a left blinker flashing,
while on the shoulder of a rural state highway.
In addition to circumstances presented in Cohen, Martinez,
and Goetaski, which the trial court cited, we have relied upon the
community caretaking doctrine in ruling that police were
authorized to stop a vehicle at 12:20 a.m. after it was weaving
within its lane at thirty-six m.p.h. in a forty-five m.p.h. zone.
State v. Washington, 296 N.J. Super. 569, 571-72 (App. Div. 1997).
Police were also authorized by the doctrine to investigate a
8 A-1487-15T1
parked, darkened car at a closed car wash at 11:44 p.m. Drummond,
supra, 305 N.J. Super. at 86-88. In both cases, officers
reasonably suspected that the occupants might be in distress, pose
a threat to others, or need assistance.
On the other hand, distinguishing Goetaski, Martinez, and
Washington, the Court in Scriven held the trial court correctly
determined that the community caretaking doctrine did not
authorize an officer to stop a motorist who was operating his high
beams under circumstances that did not affect oncoming vehicles
or otherwise affect the safety of others. Scriven, supra, 226
N.J. at 36, 38-40. The Court noted that the driver's use of his
high beams "did not suggest that the driver of the car was impaired
or that the vehicle had a problem." Id. at 39 (internal quotation
marks omitted). The Court recognized that an officer may instruct
a driver to dim high beams if their brightness impairs an officer's
or road workers' ability to perform tasks; yet, the officer in
Scriven stopped the vehicle for a different reason — he mistakenly
and unreasonably believed the driver violated N.J.S.A. 39:3-60.
Id. at 39-40.
Similarly, in State v. Cryan, we found that the community
caretaking doctrine did not justify a stop when the driver merely
paused for about five seconds after a stoplight turned green at
9 A-1487-15T1
approximately 4:24 a.m.4 Cryan, supra, 320 N.J. Super. at 327,
331. Simply put, that delay was not enough for an objectively
reasonable officer to conclude that the driver was experiencing
difficulty, thereby posing a hazard to himself or others. Id. at
331.
Applying these principles, we discern no error in the trial
court's decision. Given our standard of review, we are constrained
to defer to the trial judge's determination that the officer
stopped the Honda in order to advise the driver of the non-working
brake light. The judge rejected the argument that the brake light
condition was a pretext to conduct an investigatory stop.
We also discern no error in the court's conclusion that the
stop furthered the community caretaking purpose. Although the law
had not yet required motorists to maintain operational center
brake lights,5 it is evident nonetheless that the light serves the
purpose of making vehicles safer. The center brake light's obvious
design is to alert following drivers that a vehicle's brakes have
been applied and it is about to slow or stop. As the center brake
4
By contrast, a significant delay may justify an objectively
reasonable concern about the driver's welfare, or raise a
reasonable and articulable suspicion that his inattentiveness was
due to intoxicants.
5
The Legislature required center brake lights in cars made after
1985 when it adopted L. 2013, c. 230, § 2, which became effective
on March 1, 2014.
10 A-1487-15T1
light may be more noticeable than the other lower-situated brake
lights, it may prompt the following driver to slow sooner and help
avoid rear end collisions.
The officer observed that the brake light was not working.
That equipment condition affected the safety of the passengers in
the vehicle and those in any vehicle that might follow it. Unlike
cases involving a slow travelling vehicle, where an officer may
only suspect equipment trouble or other distress, the equipment
trouble in this case was readily apparent to the officer.
Consistent with the principles of the community caretaking
doctrine, the officer was authorized to conduct a limited traffic
stop to advise the driver of the Honda that the brake light was
not working.
The scope of the officer's inquiry was also appropriate. It
bears repeating that, consistent with the principles enumerated
in Dickey, an officer may not expand a community caretaking stop
into a free-ranging investigatory stop. Notably, however, our
courts have consistently found that traffic stops are an
appropriate means of responding to a reasonable community
caretaking concern. See Cohen, supra, 347 N.J. Super. at 380-81;
Martinez, supra, 260 N.J. Super. at 77-78; Goetaski, supra, 209
N.J. Super. at 364-65. We have acknowledged an officer need not
simply permit a community hazard to pass by. The law does not
11 A-1487-15T1
dictate the precise manner in which officials may perform their
caretaking function. See Bogan, supra, 200 N.J. at 81 (noting
that, when applying the community caretaking doctrine, "[t]he
question is not whether the police could have done something
different, but whether their actions, when viewed as a whole, were
objectively reasonable").
We hasten to add, however, that if the purpose of a stop is
to advise a motorist of non-operational equipment that does not
constitute a motor vehicle violation, it is questionable whether
the officer can go beyond that purpose and even request the
driver's credentials. Cf. Scriven, supra, 226 N.J. at 40 (noting
that the officer did not simply "signal to the driver to dim her
high beams because they were interfering with his mission," but
instead effectuated a motor vehicle stop because he unreasonably
believed the driver violated the law). As the United States
Supreme Court has held, absent applicability of a warrant
exception, "stopping an automobile and detaining the driver in
order to check his driver's license and the registration of the
automobile are unreasonable under the Fourth Amendment." Delaware
v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d
660, 673 (1979).
However, we need not define in detail the scope of activity
authorized by the community caretaking doctrine in a case like
12 A-1487-15T1
this. As the officer approached the vehicle, he observed the
frontseat passenger hand off a bag of green vegetation. That
plain view observation provided a new and separate crime-fighting-
related basis to continue the stop. See Bogan, supra, 200 N.J.
at 379-80 (noting the plain view doctrine permitted an officer to
question and detain the defendant without "judicial permission"
after the officer had lawfully entered the apartment where
defendant was hiding pursuant to the community caretaking
doctrine).
We acknowledge that the State now asserts an alternative
basis for sustaining the stop. Citing Heien v. North Carolina,
___ U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014), and State
v. Sutherland, 445 N.J. Super. 358 (App. Div.), leave to appeal
granted, ___ N.J. ___ (2016), the State contends that the officer
had a reasonable and articulable suspicion of a violation of
N.J.S.A. 39:3-66.3, even though the Legislature did not require
center brake lights until several months after the stop. The
State apparently did not press this argument before the trial
court, nor did the trial court address it.6 Inasmuch as we affirm
the trial court's decision grounded in the community caretaker
6
We do not have the State's trial court brief. However, in oral
argument, which occurred before Heien and Sutherland were decided,
the assistant prosecutor relied upon the community caretaking
function as a basis for the stop.
13 A-1487-15T1
doctrine, we need not address whether a reasonable mistake of law
might have justified the stop.
In sum, the trial court did not err in denying defendant's
motion to suppress.
III.
Defendant contends her conviction should be set aside
because, under L. 2003, c. 117, her possession of guns in September
2013 was not a crime. We disagree.
The statute upon which defendant relies states:
Any person who has in his possession a handgun
in violation of subsection b. of [N.J.S.A.
2C:39-5] . . . on the effective date of this
act [August 8, 2013] may retain possession of
that handgun . . . for a period of not more
than 180 days after the effective date of this
act. During that time period, the possessor
of that handgun . . . shall:
(1) transfer that firearm to any person
lawfully entitled to own or possess it; or
(2) voluntarily surrender that firearm
pursuant to the provisions of [N.J.S.A. 2C:39-
12].
[L. 2013, c. 117, § 1.]
Under N.J.S.A. 2C:39-12, a person will not be held criminally
liable for possessing a firearm "if after giving written notice
of his intention to do so . . . he voluntarily surrendered the
weapon[.]"
14 A-1487-15T1
Defendant had the burden to prove the amnesty law applied to
her, as it served her interest to do so, and the amnesty law did
not create an element of the offenses charged. See N.J.S.A. 2C:1-
13(d) (stating that the burden of proof for a finding of fact that
is not an element of the offense rests on the party whose interests
will be furthered if the finding were made). She has failed to
do so. Instead, she admitted in her plea colloquy that she
violated N.J.S.A. 2C:39-5 in September 2013.
According to the statute's plain language, see In re Kollman,
210 N.J. 557, 568 (2012) (stating if the statute's plain language
is clear, the court's interpretative task is complete), it applies
only to persons in possession of a weapon on the effective date.
See State ex rel. C.L.H.'s Weapons, 443 N.J. Super. 48, 56 (App.
Div. 2015). Defendant presented no evidence that she possessed
the firearms on August 8, 2013, that she provided written notice
to authorities, or that she voluntarily surrendered the firearms.
The statute was not intended to shield from prosecution a person
who "voluntarily surrender[s]" a weapon only "after it has already
been seized" by authorities. Id. at 56-57 (internal quotation
marks omitted). In sum, the statute has no impact on her
conviction.
Affirmed.
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