State of New Jersey v. William L. Witt , 435 N.J. Super. 608 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0866-13T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
May 21, 2014
v. APPELLATE DIVISION
WILLIAM L. WITT,
Defendant-Respondent.
_________________________________________________________
Argued May 6, 2014 – Decided May 21, 2014
Before Judges Fisher, Koblitz and O'Connor.
On appeal of an interlocutory order of the
Superior Court of New Jersey, Law Division,
Salem County, Indictment No. 13-04-0215.
Ronald Susswein, Assistant Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General, attorney;
Mr. Susswein, of counsel and on the brief).
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Mr. Kirsch, of counsel and on the
brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
By way of this appeal of an interlocutory order, which
granted defendant's motion to suppress evidence seized during a
warrantless search of his motor vehicle, the Attorney General
seeks to have "overturn[ed] the rule of law announced in State
v. Pena-Flores, 198 N.J. 6 (2009)." The Attorney General,
however, candidly acknowledges what is undeniably true – this
court "does not have the authority to overturn" Pena-Flores.
Consequently, the Attorney General seems to simply seek our
predictable disposition on the merits so he may take his fight
to the Supreme Court. We granted leave to appeal not because we
believed there is merit in this appeal but because it is our
general practice to grant the State's motions for leave to
appeal the suppression of evidence. See State v. Reldan, 100
N.J. 187, 204-05 (1985); State v. Ruffin, 371 N.J. Super. 371,
389 (App. Div. 2004); State v. Alfano, 305 N.J. Super. 178, 190
(App. Div. 1997). We now affirm because we are bound by Pena-
Flores, because of the utter absence of any exigency to support
the warrantless vehicle search that occurred, and because there
was no justification for this motor vehicle stop.
Following defendant's arrest at a motor vehicle stop, which
we will describe momentarily, a warrantless search led to the
discovery and seizure of a handgun from the center console of
defendant's vehicle. After being indicted and charged with
unlawful possession of a firearm, N.J.S.A. 2C:39-5(b), and
unlawful possession of a firearm by a convicted felon, N.J.S.A.
2 A-0866-13T2
2C:39-7(b), defendant moved for the suppression of the evidence
seized during the warrantless vehicle search.
The suppression hearing was stunningly brief. Only the
arresting officer testified, and his testimony consumes a mere
eight transcript pages. During the course of that testimony the
prosecutor made little attempt to elicit evidence – to the
extent any existed – of exigent circumstances necessitating the
warrantless search.
The arresting officer testified that he was on patrol on
December 19, 2012. He had just concluded his involvement with
another motor vehicle stop when, at approximately 2:00 a.m., a
vehicle drove by with his "high beams on" that the driver
"failed to dim" as he drove by. The officer pursued and stopped
defendant's vehicle on Route 48 in Carneys Point. As he
questioned defendant, the officer formed the conclusion that
defendant was intoxicated.
Defendant's credentials were readily provided. Defendant
also complied with the officer's request that he step out of the
vehicle and engage in a field sobriety test, which the officer
believed defendant failed. The officer arrested defendant, read
him his Miranda1 rights, and handcuffed and seated defendant in
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
3 A-0866-13T2
the back of the officer's patrol vehicle. The officer had
called for back-up during the field sobriety test, and another
police vehicle had promptly arrived. The officer also testified
there were no other occupants in defendant's vehicle and there
was "[n]ot a lot of traffic out there" at that early morning
hour.
After hearing argument on the significance of this
testimony, Judge Timothy G. Farrell granted defendant's motion
to suppress. The State then moved for leave to appeal, which we
granted.
In appealing what it believes to be the appropriate case
for its quixotic attempt to obtain a change in the currently
applicable legal principles,2 the State argues in a single
point:3
THE CURRENT EXIGENT-CIRCUMSTANCES TEST UNDER
NEW JERSEY'S INTERPRETATION OF THE
AUTOMOBILE EXCEPTION TO THE WARRANT
REQUIREMENT, AS EXPLAINED IN STATE V. PENA-
FLORES, SHOULD BE REPLACED BECAUSE IT HAS
PROVED TO BE UNWORKABLE AND HAS LED TO
UNINTENDED NEGATIVE CONSEQUENCES.
2
Because the Pena-Flores majority observed that it was merely
reaffirming "over three decades of jurisprudence," id. at 29
n.6, we assume the Attorney General will also be seeking the
Supreme Court's overruling of numerous other precedents.
3
We have deleted the subparts of this point for brevity's sake.
4 A-0866-13T2
Because this court has no authority to "replace" Pena-Flores
with some other legal principles – only our Supreme Court may do
that, Franco v. Davis, 51 N.J. 237, 238 (1968) – we find the
Attorney General's arguments unworthy of our further discussion
in a written opinion. R. 2:11-3(e)(2). Notwithstanding, and
for the sake of completeness, we add the following brief
comments regarding this particular case, the application of the
automobile exception to the warrant requirement, and the faulty
basis for this particular motor vehicle stop.
In reviewing its long line of decisions over many decades
regarding automobile searches, the Supreme Court in Pena-Flores
reiterated that a warrantless search of an automobile in New
Jersey is permissible "where (1) the stop is unexpected; (2) the
police have probable cause to believe that the vehicle contains
contraband or evidence of a crime; and (3) exigent circumstances
exist under which it is impracticable to obtain a warrant." 198
N.J. at 28 (citing State v. Cooke, 163 N.J. 657, 667-68 (2000)
and State v. Alston, 88 N.J. 211, 230-34 (1981)). The Court
further repeated that "[e]xigency must be determined on a case-
by-case basis," 198 N.J. at 28 (citing State v. Dunlap, 185 N.J.
523, 551 (2006)), based on "the totality of the circumstances,"
ibid. (citing Cooke, 163 N.J. at 675). And the Court observed
that the "[l]egitimate considerations" in examining such a
5 A-0866-13T2
search "are as varied as the possible scenarios surrounding an
automobile stop," including:
the time of day; the location of the stop;
the nature of the neighborhood; the
unfolding of the events establishing
probable cause; the ratio of officers to
suspects; the existence of confederates who
know the location of the car and could
remove it or its contents; whether the
arrest was observed by passersby who could
tamper with the car or its contents; whether
it would be safe to leave the car unguarded
and, if not, whether the delay that would be
caused by obtaining a warrant would place
the officers or the evidence at risk.
[Id. at 29.]
None of the circumstances presented here suggested anything
close to an exigency that would permit a motor vehicle search
without a warrant. This was an early morning stop on a deserted
highway. Defendant was alone. We assume defendant had no
confederates hiding in the brush alongside the roadway.
Defendant had been handcuffed and was seated in the back of a
police vehicle. There is no reason to believe that evidence the
officer may have been looking for – he testified he was
searching for open containers of alcohol4 – would not still be
there once a warrant was obtained. And the officer was not
4
We assume – although we concede the record does not address the
point – that any alcohol in a container in the vehicle would not
change its chemical composition during the time it would take
for the officer to apply for and obtain a search warrant,
whether by telephone or otherwise.
6 A-0866-13T2
"outnumbered." When the prosecutor argued the existence of "a
manpower issue," Judge Farrell correctly pointed out the lack of
evidence to support that contention.
Although the lack of exigencies alone would suffice in
affirming the order under review, defendant additionally argues
that not only was the seizure inappropriate but the stop of the
vehicle was infirm as well. Here, the reason given for the stop
was the fact that defendant drove by the officer, during the
officer's participation in another motor vehicle stop, without
dimming his high beams. The factual record on this point is
scant and, indeed, the State made little effort to demonstrate
the vehicle stop was proper, focusing only on the propriety of
the seizure of evidence that followed. Nevertheless, we discern
from the record that the officer who decided to make the stop
was not operating his own vehicle when defendant drove by. And,
although the record does not identify the side of the roadway
where the officer's other motor vehicle stop occurred when
defendant drove by, we have no cause at present to question the
Attorney General's representation at oral argument that the
officer was on the opposite side of the road from defendant's
vehicle. Consequently the police officer's vehicle cannot
7 A-0866-13T2
possibly fit the definition of "an oncoming vehicle" contained
in N.J.S.A. 39:3-60.5
It has been established that "a police officer is justified
in stopping a motor vehicle when he has an articulable and
reasonable suspicion that the driver has committed a motor
vehicle offense." State v. Locurto, 157 N.J. 463, 470 (1999)
(internal quotation marks and citations omitted); see also
Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59
L. Ed. 2d 660, 673 (1979). Here, the State argues that this
standard was met because defendant was driving with his high
beams on. That fact alone is insufficient. The applicable
statute that the officer presumably believed had been violated
does not preclude all uses of a vehicle's high beams. To the
contrary, the statute states:
Every person driving a motor vehicle
equipped with multiple-beam road lighting
equipment, during the times when lighted
lamps are required, shall use a distribution
of light, or composite beam, directed high
enough and of sufficient intensity to reveal
persons and vehicles at a safe distance in
advance of the vehicle, subject to the
following requirements and limitations:
whenever the driver of a vehicle approaches
an oncoming vehicle within five hundred
feet, such driver shall use a distribution
5
There was no evidence that there was some other "oncoming
vehicle" on the roadway when the officer decided to stop
defendant's vehicle because of a perceived violation of N.J.S.A.
39:3-60.
8 A-0866-13T2
of light or composite beam so aimed that the
glaring rays are not projected into the eyes
of the oncoming driver, and in no case shall
the high-intensity portion which is
projected to the left of the prolongation of
the extreme left side of the vehicle be
aimed higher than the center of the lamp
from which it comes at a distance of twenty-
five feet ahead, and in no case higher than
a level of forty-two inches above the level
upon which the vehicle standards at a
distance of seventy-five feet ahead.
[N.J.S.A. 39:3-60 (emphasis added).]
The right to stop a motor vehicle requires evidence that the
officer had a reasonable and articulable suspicion of a
violation of the statute. This standard does not require that
the officer possessed evidence of a violation beyond a
reasonable doubt, only that the officer had an objectively
reasonable belief that a motor vehicle violation had occurred.
State v. Williamson, 138 N.J. 302, 305-06 (1994); State v.
Puzio, 379 N.J. Super. 378, 382-84 (App. Div. 2005). That
standard was not met here.
As worded, N.J.S.A. 39:3-60 presupposes that the offending
driver's high beams are on when his vehicle "approaches an
oncoming vehicle." Because, as noted, it has not been argued
there was some other "oncoming vehicle" on the roadway at the
time, we assume the officer's reason for stopping defendant's
vehicle was based on the officer's belief that the officer's
vehicle was the "oncoming vehicle" confronted by defendant's
9 A-0866-13T2
undimmed high beams. The plain language of the statute,
however, requires that the other vehicle be in operation and in
the lane of traffic opposite to the alleged offender;6 the object
of the statute is to avoid the operation of the high beams of
one vehicle causing difficulties for the driver of another
vehicle approaching in an opposite direction.7 Accordingly, it
was not objectively reasonable for the officer to believe that
defendant was in violation of N.J.S.A. 39:3-60 when he drove by,
with his high beams on, the police officer's stationary and
unoperated vehicle on the opposite side of the roadway; it is
not reasonable for the Attorney General to assert or argue that
6
We need not decide whether a driver is required to dim his high
beams when approaching a vehicle – traveling in the same
direction – from behind, although the Legislature's use of the
word "oncoming" would suggest such a circumstance would not be
violative of N.J.S.A. 39:3-60. Cf., Maini v. Hassler, 38 N.J.
Super. 81, 84 (App. Div. 1955) (finding that part of the statute
that requires the dimming of high beams for oncoming vehicles
within 500 feet irrelevant where defendant's vehicle struck
plaintiff, who was walking on the roadway in the same
direction).
7
This is not to suggest that the vehicle other than that driven
by the alleged offender must be in motion. The statute would
still be offended if, for example, the "oncoming vehicle" was
stopped at an intersection because of a street light, stop sign
or otherwise, and the offending driver were to approach within
500 feet of the intersection with his high beams on. We do not
see, however, how a parked vehicle could be an "oncoming
vehicle" because these descriptive words suggest a vehicle in
operation even though those words do not insist that the
oncoming vehicle be in motion. Logic suggests that a driver
need dim his high beams only for a vehicle being operated,
whether in motion or standing still, in the opposite direction.
10 A-0866-13T2
the police officer's parked and unoperated patrol vehicle was an
"oncoming vehicle" within the statute's meaning.
There is no merit in the State's appeal.8
Affirmed.
8
We also find the argument posed by the Attorney General that the
officer's "community caretaker function" authorized this motor
vehicle stop to be without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). That is,
only in the Attorney General's view – the officer testified to
no such thing – defendant's use of his high beams at that time
was "abnormal" and the officer was authorized to make the stop
to question or counsel defendant regarding the use of his high
beams. We do not share the belief that use of the high beams on
a largely deserted highway in an unpopulated area is "abnormal."
And such a holding – that what a police officer believes is
"abnormal" constitutionally authorizes a stop or detention of a
motorist otherwise operating his vehicle in a proper manner –
would come dangerously close to suggesting that a police officer
may stop an individual operating a motor vehicle at any time for
any reason. We find that argument utterly foreign to well-
established constitutional principles.
11 A-0866-13T2