State of New Jersey v. Kwabena Ohene-Bonsu ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2240-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KWABENA OHENE-BONSU,
Defendant-Appellant.
__________________________
Submitted January 18, 2024 – Decided February 13, 2024
Before Judges Currier and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 20-01-0140.
Joseph E. Krakora, Public Defender, attorney for
appellant (Rochelle Mareka Amelia Watson, First
Assistant Deputy Public Defender, of counsel and on
the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel and on the brief; Catherine A. Foddai, Legal
Assistant, on the brief).
PER CURIAM
Defendant Kwabena Ohene-Bonsu appeals from a November 5, 2021
conviction for fourth-degree operating a motor vehicle during a period of license
suspension in violation of N.J.S.A 2C:40-26(b). We reject defendant's
assertions that his conviction should be vacated because it was predicated on an
unconstitutional motor vehicle stop and affirm the trial court's December 10,
2020 denial of defendant's motion to suppress evidence.
We derive the material facts from the December 10, 2020 evidentiary
hearing at which Fort Lee Police Officer Nicole Busanic and Palisades Interstate
Parkway (PIP) Sergeant Gregory Kimbro testified.
On October 15, 2019, 1 around 7:58 a.m., Busanic was monitoring traffic
conditions near the George Washington Bridge and observed defendant's vehicle
"riding the shoulder" in what she believed was an attempt to avoid traffic.
Busanic activated the patrol car's lights and initiated a motor vehicle stop. Upon
approaching the vehicle, Busanic requested defendant's driver's license,
registration, and insurance card. Defendant produced a New Jersey driver's
license bearing the name Kwabena Osei-Bonsu. Busanic issued a summons to
1
We note that defendant's brief indicates the events in question took place on
October 19, 2019. We use the date set forth in the judgment of conviction.
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Kwabena Osei-Bonsu for improper passing and advised defendant he was free
to leave.
Approximately thirty minutes later, Kimbro was driving a marked police
vehicle and observed defendant's car "drive over the solid line on the right
shoulder and then continue to drive on the solid – over the solid line on the
shoulder." He also saw that the license plate frame on the vehicle obstructed the
writing on the plate. Kimbro slowed down to allow defendant's car to pass him
in order to determine how many passengers were in his vehicle, activated his
overhead lights to alert defendant to pull over, positioned his vehicle behind
defendant's and then stopped. Although Kimbro's patrol vehicle was equipped
with a dashboard camera, the system did not begin recording until Kimbro
turned on the vehicle's patrol lights and ordered defendant to pull his car over to
the side of the roadway.
When both vehicles were stopped, Kimbro approached and asked
defendant for his license, registration, and insurance card. While waiting for the
documents, Kimbro detected an odor of suspected burnt marijuana emanating
from inside the vehicle. Defendant handed Kimbro a driver's license bearing the
name Kwabena Osei-Bonsu with a birthdate of March 7, 1989. According to
Kimbro, when he asked defendant to step out of the vehicle, he "reeked of weed"
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and had a work identification and two summonses from Fort Lee in his hand that
he tried to give Kimbro.
Based upon the smell of suspected marijuana, Kimbro searched the
vehicle and found what he believed to be a mostly burnt, hand-rolled marijuana
cigar as well as loose marijuana. The second PIP officer who arrived at the
scene to provide back-up support observed a wallet in plain view on the front
passenger-side seat which, upon examination, contained a second New Jersey
driver's license, credit cards, a college identification, a blood center card, and a
benefits card all bearing the name Kwabena Ohene-Bonsu.
Defendant asserted the second driver's license found in the wallet
belonged to his twin brother. However, the second driver's license had
defendant's birthdate listed as January 1, 1991, making it impossible that the two
licenses were those of twins, since the birthdate differed from the first driver's
license produced. Additionally, Kimbro testified that the photograph on the
license defendant first gave him did not resemble defendant "in any way, shape,
or form" and the photograph on the second license looked like defendant.
Kimbro gave defendant a PIP personal information form to fill out to
accurately identify himself. After being handed the form and prior to
completing it, defendant told Kimbro, "Officer, I f---ed up. Can I talk to you?"
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The officer told defendant to continue filling the form out. Defendant wrote on
the form that his last name was Kwabena, first name Bonsu and initially listed
his date of birth as March 7, 1989, though he subsequently crossed out March
and wrote January before orally reverting to March when he went over the form
with Kimbro.
When Kimbro entered the information defendant provided on the form
into the computer for a records check, no record came back. However, when
Kimbro called headquarters and provided the information on both driver's
licenses, one for Kwabena Osei-Bonsu and the other for Kwabena Ohene-Bonsu,
Kimbro was advised that defendant, Kwabena Ohene-Bonsu, had a suspended
license for driving while intoxicated. Kimbro then placed defendant under
arrest.
Under indictment No. 20-01-0140, defendant was charged with fourth-
degree operating a motor vehicle during a period of license suspension, N.J.S.A.
2C:40-26(b), and fourth-degree obtaining the personal identifying information
of another to assume that person's identity without authorization and with the
purpose to avoid prosecution for a crime, N.J.S.A. 2C:21-17(a)(4). Defendant
also received summonses for violating PIP regulations 411.1(k) and 411.1(w),
as well as possession of a controlled substance, N.J.S.A. 2C:35-10(a)(4);
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possession of drug paraphernalia with the intent to use, N.J.S.A. 2C:36 -2; and
two counts of hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4).
Defendant filed a motion to suppress evidence and dismiss the charges,
claiming the second motor vehicle stop was unlawful. After the December 10,
2020 evidentiary hearing, 2 the court ruled orally and found Kimbro "had a
reasonable and articulable suspicion to believe that [defendant] had committed
a motor vehicle offense and that the stop was proper." The court found Kimbro's
testimony that defendant was "going into the shoulder and driving over the line
into the shoulder and continuing to drive in the shoulder" was credible. The
court further found although defendant's alleged driving infraction was not
captured on Kimbro's dashboard recording system, the lack of video was legally
irrelevant in light of Kimbro's testimony.
The court concluded Kimbro's stop of the vehicle was lawful based upon
Kimbro's observation of defendant's vehicle driving over the solid line onto the
shoulder of the roadway. The court also determined the officers had probable
cause to search defendant's vehicle based upon the smell of suspected marijuana
emanating from the vehicle and from defendant's person when he exited the
2
By consent of the parties, the evidentiary hearing also addressed the
voluntariness of defendant's statements during the motor vehicle stop. No
appeal was filed as to the admissibility of defendant's statements.
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vehicle. The trial court found that it was reasonable to search defendant's wallet,
which was in plain view, to determine whether he had any controlled dangerous
substances inside. Thus, the court entered a memorializing written order
denying defendant's motion to suppress.
At the conclusion of the November 3 and November 5, 2021 trial, the jury
found defendant guilty of operating a motor vehicle during a period of license
suspension and not guilty of obtaining the personal identifying information of
another. On February 3, 2022, the court sentenced defendant to the mandatory
minimum term required by N.J.S.A. 2C:40-26(b) of 180 days incarceration, in
addition to required fines and penalties.
Defendant appeals, raising only one argument:
THE MOTOR VEHICLE STOP WAS UNLAWFUL
BECAUSE THE PIP REGULATION ON WHICH THE
STOP WAS BASED IS UNCONSTITUTIONALLY
OVERBROAD.
Our review of a trial court's decision regarding a motion to suppress is
limited. State v. Ahmad, 246 N.J. 592, 609 (2021). "Generally, on appellate
review, a trial court's factual findings in support of granting or denying a motion
to suppress must be upheld when 'those findings are supported by sufficient
credible evidence in the record.'" State v. S.S., 229 N.J. 360, 374 (2017)
(quoting State v. Gamble, 218 N.J. 412, 424 (2014)).
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The reviewing court "ordinarily will not disturb the trial court's factual
findings unless they are 'so clearly mistaken that the interests of justice demand
intervention and correction.'" State v. Goldsmith, 251 N.J. 384, 398 (2022)
(quoting Gamble, 218 N.J. at 425) (internal quotation marks omitted). However,
legal conclusions drawn from those facts are reviewed de novo. State v. Radel,
249 N.J. 469, 493 (2022).
The Fourth Amendment to the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution protect the right of individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I,
¶ 7. The reasonable suspicion required to make a stop under the Fourth
Amendment "is a less demanding standard than probable cause and requires a
showing considerably less than preponderance of the evidence, [but] the Fourth
Amendment requires at least a minimal level of objective justification for
making the stop." Illinois v. Wardlow, 528 U.S. 119, 123 (2000). Additionally,
"[t]he officer must be able to articulate more than an 'inchoate and
unparticularized suspicion or "hunch"' of criminal activity." Id. at 123-24(quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).
Similarly, the New Jersey Constitution requires "something less than the
probable cause standard needed to support an arrest." State v. Thomas, 110 N.J.
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673, 678 (1988); State v. Citarella, 154 N.J. 272, 279 (1998). The officer must
"'point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant' the intrusion." Thomas, 110
N.J. at 678 (quoting Terry, 392 U.S. at 21). This is an objective standard. Ibid.We are compelled to highlight at the outset that defendant does not dispute
the lawfulness of the first stop accomplished by Busanic on October 15, 2019.
Defendant was charged with driving with a suspended license in connection with
both stops. Therefore, even if we were to find the second stop of defendant's
vehicle by Kimbro did not comport with Fourth Amendment jurisprudence, the
conviction for driving with a suspended license would not be constitutionally
infirm based upon the lawfulness of the first motor vehicle stop.
Nonetheless, we turn to defendant's sole argument in his amended brief
that the motion to suppress evidence obtained by Kimbro during the second stop
should have been granted because PIP 411.1(k) is unconstitutionally overbroad.
The State posits on appeal that defendant was stopped for and charged with
violating both PIP 411.1(k) and (w). 411.1(k) provides that "no person shall
cause or permit a motor vehicle to cross a solid longitudinal traffic line, except
when directed to do so by an employee of the commission." Under 411.1(w),
"no person shall drive a vehicle carelessly, or without due caution and
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circumspection, in a manner so as to endanger or be likely to endanger, a person
or property."
Defendant for the first time on appeal argues the trial court improperly
failed to consider the constitutionality of the second stop through the lens of the
overbroad application of PIP 411.1(k). We consider issues raised for the first
time on appeal only if plain error is established. R. 2:10-2. Based upon our
careful review of the proofs at the December 10, 2020 evidentiary hearing in
tandem with prevailing law, we conclude defendant has failed to demonstrate
plain error.
The proofs at the evidentiary hearing on defendant's motion to suppress,
at which defendant did not testify, established that Kimbro had reasonable and
articulable suspicion that defendant had violated PIP regulation 411.1(k) and
(w), with which he was charged. Among the trial court's factual findings were
that Kimbro testified credibly as to his observation of defendant's vehicle
driving over the solid line on the right shoulder of the roadway and continuing
to drive on the shoulder until he moved back into a driving lane. We decline to
disturb the trial court's factual findings and credibility determinations as they
are supported by the record at the evidentiary hearing.
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Kimbro's testimony supports the conclusion that the stop was lawful since
he had reasonable suspicion defendant had committed a traffic infraction based
on his personal observation of defendant's vehicle crossing the solid yellow line
and continuing to drive on the shoulder in violation of both PIP regulations.
Observation of traffic violations can form the basis of reasonable and articulable
suspicion to stop a vehicle. State v. Bacome, 228 N.J. 94, 103 (2017).
Defendant criticizes the lack of detail in Kimbro's testimony as to
precisely how long the defendant was driving over the solid yellow line and
argues that PIP regulation 411.1(k) was unconstitutionally applied to defendant
based upon a "de minimis" violation. We conclude Kimbro's observation,
deemed credible by the trial court, that defendant drove over the line and
continued to do so constitutes sufficient reasonable and articulable suspicion of
a violation of PIP regulations 411.1(k) and (w).
Ultimately, we reject defendant's argument that the stop was violative of
the Fourth Amendment because the regulation which formed the basis for the
stop was unconstitutionally overbroad. Kimbro's testimony establishes he had
reasonable and articulable suspicion to believe that defendant was in violation
of PIP 411.1(k) and (w) when he initiated the motor vehicle stop. The stop was,
therefore, consistent with Fourth Amendment jurisprudence and the trial court
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did not err in denying defendant's motion to suppress the evidence garnered from
the resulting search.
Affirmed.
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