Opinion
DOCKET NO. A-5520-12T3
08-28-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRON J. NICHOLSON, Defendant-Appellant.
Jason C. Pollack, attorney for appellant. Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Carroll. On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-06-13. Jason C. Pollack, attorney for appellant. Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following denial of his suppression motion in municipal court, defendant Terron Nicholson entered a conditional guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a. On the DWI conviction, the municipal court suspended defendant's driving privileges for three months, and ordered him to participate in the Intoxicated Driver Resource Center for a period of twelve hours. On the refusal conviction, the court suspended defendant's driving privileges for seven months, concurrent with the suspension imposed on the DWI conviction. The court also imposed the appropriate fines, assessments, surcharges, and costs. Upon de novo review, the Law Division judge denied defendant's suppression motion, found defendant guilty, and imposed the identical sentences.
In this appeal, defendant challenges the denial of his motion to suppress. Defendant argued before the municipal court judge and the Law Division judge, as he does here, that the DWI roadblock that resulted in the stop of his vehicle and his subsequent arrest was invalid. We reject defendant's arguments and affirm.
We derive the following facts from the record of the suppression hearing, at which the State presented the testimony of Patrolman Kevin Carey, Chief Richard Sarlo, Detective Sergeant Guy Deritis, Detective William Lyons, and Sergeant Michael Pope of the Collingswood Police Department. Following a discussion with Chief Sarlo, and review of DWI arrest records and DWI-related accident reports, Officer Carey recommended establishing a DWI checkpoint on Route 130 South at Haddon Avenue in Collingswood. In his July 17, 2012, three-page report to Chief Sarlo, Officer Carey indicated that his research revealed that
this location and approximately a one-mile radius from it, has accounted for approximately 90% of all DWI arrests thus far in 2012 and 100% of all alcohol related crashes for that same time period. Route 130 is a major thoroughfare through the Borough of Collingswood and there are numerous liquor-related establishments situated on and within close proximity to this highway.
In his report, Officer Carey indicated that increased alcohol consumption occurred during "the summertime and warm weather weekends." Accordingly, he suggested that DWI checkpoints be established on Friday, August 17, 2012, and Thursday, August 30, 2012, both beginning at 10 p.m. and continuing until 3 a.m. the following day. Officer Carey's report proposed that signage advising of the checkpoint be posted, and a press release submitted to the Courier Post to provide advance notification. Marked police units were to be utilized, with participating officers in uniform wearing reflective vests. Officer Carey's plan provided that motorists be initially detained at "Area A," where they would be observed, handed informational flyers, and then allowed to proceed. In the event that signs of intoxication or other motor vehicle violations were observed, drivers would then be directed to "Area B" for further observation and testing. Should an arrest ensue, the motorist would then be transported to police headquarters for processing.
After being reviewed by Chief Sarlo, Officer Carey's proposal was then submitted to the Camden County Prosecutor's Office on July 17, 2012. By letter dated August 6, 2012, an assistant prosecutor approved the proposal.
Officer Carey was in charge of implementing the DWI checkpoint on both dates. Since defendant was stopped and arrested during the early morning hours on August 31, 2012, the details of that particular checkpoint were the focus of the suppression hearing.
Eight police officers participated, and at approximately 10 p.m. on August 30, 2012, they met and reviewed verbal instructions given by Officer Carey prior to taking their positions at the various locations. A series of signs had been posted alerting motorists of the impending DWI checkpoint. The first sign, stating "DWI checkpoint," was posted on an unmanned police vehicle with its lights on, located some 250 to 300 yards from the checkpoint. There, the roadway funneled from three lanes into one due to ongoing construction. A second sign was posted some 150 to 200 yards later. Finally, a third sign, at Area A where the contact officers were located, advised "Stop, Police Checkpoint." Additionally, a press release was sent to the Courier Post announcing the planned sobriety checkpoint. At the hearing, the State introduced in evidence a fax confirmation sheet that the press release was sent, although no proof of its actual publication was presented.
Officer Carey testified that the pattern he instructed the officers to follow included stopping five motorists, then allowing five to pass through, and thereafter continuing this same pattern. All of the officers testified that this pattern was followed, except for Detective Lyons, who on direct examination testified that he was instructed to stop "Five -- every five - fifth vehicle, and let five go." Later, on cross-examination, Lyons testified that he was to stop "[e]very fifth" vehicle.
The officers situated in Area A greeted the incoming vehicles, introduced themselves and advised the drivers of the purpose of the checkpoint, handed them an informational pamphlet, and sent them on their way if no indicia of alcohol consumption was noted. The officers uniformly testified that this interaction lasted less than one minute. If alcohol use or another motor vehicle offense was observed, the vehicle was then channeled into Area B, the assessment area, a short distance away.
Chief Sarlo was stationed at the northbound side of the checkpoint, monitoring traffic. On a few occasions that evening, when he noticed a traffic build-up developing, he contacted the other officers by radio. The checkpoint was then suspended, and additional vehicles were permitted to pass through until traffic again flowed freely, at which time the normal pattern of stopping five vehicles and allowing five to pass through resumed.
The August 30, 2012 sobriety checkpoint resulted in two arrests, including defendant's. Officer Carey was unable to recount how many vehicles passed through the checkpoint that evening.
Defendant did not testify and presented no witnesses on his behalf. The municipal judge found consistent the testimony of all of the State's witnesses that it took less than a minute for the contact officers in Area A to greet drivers and then determine whether they were to either move on or enter the assessment area. He also found the officers consistent and credible as to the pattern of stopping vehicles that they were instructed to follow, except that he discounted Det. Lyons' testimony, finding it "to be somewhat confused and inconsistent within itself." The judge accepted Chief Sarlo's uncontradicted testimony that when a traffic back-up occurred, he would order that the checkpoint be suspended and the traffic let through. He also found that while there was evidence Officer Carey sent the press release to the newspaper, there was no proof as to its actual publication.
In denying defendant's suppression motion, the municipal judge concluded that the DWI checkpoint complied with the essential requirements established in State v. Kirk, 202 N.J. Super. 28, 41-42 (App. Div. 1985). Specifically, the judge found that: (1) the discretion of the officers was limited by the instructions they had been given; (2) the location, dates, and times established for the checkpoint were based on statistical data showing that nine of the ten DWI arrests that year had occurred within a one-mile radius of the target area; (3) the plan had been reviewed by the police chief and approved by the county prosecutor; and (4) efforts were properly made to move traffic along as expeditiously as possible without any undue delay to the motoring public.
Following his conditional guilty plea to the charges, defendant appealed to the Law Division, again challenging the validity of the DWI checkpoint. The Law Division judge similarly rejected defendant's arguments, finding that the roadblock was constitutional and conformed with established legal precedent. The judge found that "[i]t was carefully targeted to a designated area at a specific time and place based on the data justifying the site selection." The judge further concluded that the proper procedures were followed, and adequate notice provided.
On appeal, defendant essentially reiterates the same arguments before us as he made in the Law Division, presenting the following points for our consideration:
Point I
GIVEN THE LACK OF DETAILED FACTUAL FINDINGS IN THE LAW DIVISION AND UNDISPUTED FACTS, THIS COURT SHOULD DECIDE THE CONSTITUTIONAL VALIDITY OF THE DWI CHECKPOINT AS A MATTER OF LAW IN A PLENARY FASHION
Point II
THE COLLINGSWOOD BOROUGH DWI CHECKPOINT VIOLATED THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THIS COURT SHOULD THEREFORE REVERSE THE LAW DIVISION AND INVALIDATE THE CHECKPOINT
Point III
THE COLLINGSWOOD BOROUGH DWI CHECKPOINT VIOLATED THE STATE CONSTITUTION PURSUANT TO THE REQUIREMENTS OF STATE V. KIRK AND THIS COURT SHOULD THEREFORE REVERSE THE LAW DIVISION AND INVALIDATE THE CHECKPOINT
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, so long as they are supported by sufficient credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2011); State v. Elders, 192 N.J. 224, 243 (2007). Additionally, we afford deference to a trial judge's findings, "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010) (citation and internal quotation marks omitted). We do not, however, defer to a trial judge's interpretation of the law, and review legal issues de novo. State v. Gandhi, 201 N.J. 161, 176 (2010). We review mixed questions of law and fact de novo. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005).
In addition, on appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a)(2). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. Id. at 162. However, as in the Law Division, we are not in as good a position as the municipal court judge to determine credibility and should, therefore, refrain from making new credibility findings. See State v. Locurto, 157 N.J. 463, 470-72 (1999). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
A State's use of highway sobriety checkpoints, conducted in accordance with established guidelines setting forth proper procedures governing checkpoint selection and operation, does not violate the Fourth and Fourteenth Amendments to the United States Constitution. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 447, 110 S. Ct. 2481, 2483, 110 L. Ed. 2d 412, 418 (1990).
In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program.
[Id. at 455, 110 S. Ct. at 2488, 110 L. Ed. 2d at 423.]
Because a DWI roadblock authorizes a police officer to stop and detain a motorist without individualized suspicion, it must be executed in strict adherence to well-established procedural safeguards. See Kirk, supra, 202 N.J. Super. at 40-41. Our Supreme Court has explained that "[i]n order to pass muster under our state constitution, a roadblock or checkpoint must be established for a specific need and to achieve a particular purpose at a specific place." State v. Carty, 170 N.J. 632, 652 (2002) (citing Kirk, supra, 202 N.J. Super. at 37).
Here, Officer Carey's roadblock justification report described the significant history of DWI incidents in the target area, founded on statistical data. It also explicated the roadblock's intended purposes of DWI apprehension and fostering motorist safety, supplemented by informational pamphlets distributed to motorists advancing the "salutary purpose" of enhancing public awareness of the dangers associated with drinking and driving. See State v. Reynolds, 319 N.J. Super. 426, 431, 432-33 (App. Div. 1998). The roadblock in this matter clearly adhered to the principles established by the Court in Carty.
Further, Officer Carey's coordination of the checkpoint's location and implementation, accompanied by Chief Sarlo's oversight, satisfied the requirement that the roadblock be established by a command or supervisory authority. Kirk, supra, 202 N.J. Super. at 40. The credible evidence in the record supports the finding that the police adhered to an established pattern of stopping motorists entering the checkpoint, who were then subject to only minimal intrusion. Additionally, proper signs were "set up to provide ample notice and warning to the oncoming motorists that a sobriety checkpoint was ahead." State v. Moskal, 246 N.J. Super. 12, 19 (App. Div. 1991). These "on-the scene warnings" were "[a]ll that [wa]s necessary within the . . . Kirk framework." Ibid. Even though the State failed to introduce proof that its press release was actually published, such advance newspaper notice of police roadblocks is not required. State v. DeCamera, 2 37 N.J. Super. 380, 383 (App. Div. 1989). Finally, the police developed and implemented a system whereby additional cars were allowed to pass through in order to eliminate traffic backups and enhance motorist safety, thus avoiding the pitfalls which rendered unconstitutional the operation of the roadblock in State v. Barcia, 2 35 N.J. Super. 311, 318-19 (App. Div. 1989).
Accordingly, we conclude that the subject roadblock was properly established and conducted, and that defendant's motion to suppress all evidence related to his DWI and refusal offenses was properly denied.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION