State v. Golotta

• Citation: 837 A.2d 359,178 N.J. 205
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Salvatore GOLOTTA, Defendant-Respondent.
• Decision Date: 16 December 2003
• Court: New Jersey Supreme Court

837 A.2d 359

178 N.J. 205

STATE of New Jersey, Plaintiff-Appellant, v. Salvatore GOLOTTA, Defendant-Respondent.

Supreme Court of New Jersey.

Argued November 3, 2003.

Decided December 16, 2003.

James L. McConnell, Assistant Prosecutor, argued the cause for appellant (Wayne J. Forrest, Somerset County Prosecutor, attorney).

Leonard Meyerson, Jersey City, argued the cause for respondent (Miller, Meyerson, Schwartz & Corbo, attorneys; Mr. Meyerson and David H. Baskind, of counsel, Mr. Baskind, on the briefs).

Steven J. Zweig, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Peter C. Harvey, Attorney General, attorney). Justice VERNIERO delivered the opinion of the Court.

In this search-and-seizure case, a cell-phone user telephoned a 9-1-1 operator to report that a particular motor vehicle was being driven erratically on a public road. The question presented is whether that call and the information that it imparted provided a constitutional basis for the police to stop the identified vehicle. Given the significant risk of death or serious injury to the public and to the vehicle's driver implicated by such a call, and in view of the other factors discussed below, we hold that the answer to that question is yes.

I.

These are the pertinent facts as developed at the suppression hearing before the municipal court. On November 5, 2000, at about 9:30 p.m., two officers of the Peapack-Gladstone police department, each driving a separate police cruiser, received a message from a communications center in Somerville. The center's dispatcher relayed to the officers that the center had received a call from "a citizen informant" using a cell phone. According to the one officer who testified, the citizen called to report that a person in a certain vehicle was driving erratically. The officer was informed that the vehicle was "all over the road" and "out of control. It was weaving back and forth."

The caller also described the vehicle as a blue pickup truck with the license plate number, VM-407B, and indicated that it was traveling northbound on Route 206. At the suppression hearing the officer was asked whether the dispatcher disclosed the caller's name or "whether or not a name was obtained[.]" The officer answered that "[a] name was not obtained." The officer further indicated "that [the caller] did not want to file a charge or a complaint ... [a]nd did not want to be involved. [The caller] merely wanted to report that this [erratic driving] was occurring."

When the officer received that information, he was traveling westbound on Pottersville Road close to where the road intersects with Route 206. The officer explained, "I approached 206 at the crest of the hill. At the traffic light, as I approached, I witnessed ... a blue pick-up truck pass in front of me." (The officer later indicated that he had not observed "any movements of the vehicle whatsoever." The officer made that statement in response to the question, "Can you describe what the vehicle was doing?" Viewing the testimony in context, we understand it to mean that the officer did not see any erratic movements, but did observe the vehicle pass in front of him.) He and the other officer, who was traveling northbound on 206, quickly moved behind the vehicle, and they "initiated the stop at the same time."

The vehicle matched the description given by the caller, except that the last letter of the license plate number was "V" rather than "B." As already indicated, because the testifying officer immediately initiated the stop once he had located the vehicle, he did not notice whether it was being driven improperly. The officer stated that he "was only behind the vehicle for a matter of four to five seconds before [he and the other officer] effected ... the stop."

Subsequent to the stop, the driver, later identified as defendant Salvatore Golotta, submitted to a breathalyzer test, and was charged with driving while intoxicated (DWI) under N.J.S.A. 39:4-50. Defendant moved before the municipal court to suppress the breathalyzer results. He argued that, by not observing the alleged erratic driving, the officer had lacked sufficient suspicion to stop the vehicle and, as a result, any evidence gathered after that juncture was inadmissible. Given that position, the suppression hearing focused solely on whether the police were justified in stopping the vehicle and not on any aspect of their conduct that followed the stop. The municipal court denied defendant's motion. Thereafter, defendant entered a guilty plea to the DWI offense conditioned on his right to appeal the denial of his suppression motion.

Defendant appealed to the Law Division. Following its de novo review of the record, the trial court noted that the officer had stopped defendant's vehicle on the basis of the anonymous tip and without himself observing any suspicious conduct. Consistent with its view of the relevant case law, the trial court held that there was an insufficient basis contained in the record to justify the stop and, therefore, that the breathalyzer results must be suppressed.

After granting the State's motion for leave to appeal, the Appellate Division affirmed in a reported opinion. State v. Golotta, 354 N.J.Super. 477, 808 A.2d 135 (2002). The panel agreed with the Law Division that the police had not adequately corroborated or verified the anonymous tip and, accordingly, the officers had not formed "a reasonable articulable suspicion of quasi-criminal activity to justify the stop of defendant." Id. at 483, 808 A.2d at 138. We granted the State's motion for leave to appeal, 176 N.J. 70, 819 A.2d 1186 (2003), and also granted amicus curiae status to the Attorney General.

II.

Prior to oral argument before this Court, the Attorney General moved to submit the fact that the informant in this case was not anonymous but in reality had given his name to the 9-1-1 operator at the time of the call. As support, the Attorney General has provided a written abstract generated by a computer-aided dispatch system that purportedly contains the precise date and time of the call, the caller's name, and other relevant information. Defendant strongly objects to that submission, contending that we should not "re-write the [t]rial [r]ecord" at this belated juncture in the proceedings.

We agree with defendant insofar as the caller's identity is concerned. We recently explained that, as a general rule within a suppression context, "the State on appeal cannot rely on factual testimony or other proof that was not submitted as part of the lower court's record." State v. Wilson, 178 N.J. 7, 14, 833 A.2d 1087, 1091 (2003). It would be inconsistent with appellate practice for us to accept the proffered information here, especially in view of the fact that the State had ample opportunity two years ago to present it at the proper forum, namely, at the original suppression hearing. Thus, we will continue to treat and analyze this case as if the informant had not offered or identified his name to the police. The Attorney General's brief and motion papers contain other information that generally describes the 9-1-1 system that is utilized in Somerset County and elsewhere in the State. We accept that generic information, which is akin to our taking judicial notice of it, for the limited purpose of assisting the Court in understanding how the 9-1-1 system operates in this setting. See id. at 17, 833 A.2d at 1093 (instructing in search-and-seizure case that appellate courts "can infer or take judicial notice of certain facts in appropriate circumstances"); State v. Garthe, 145 N.J. 1, 12, 678 A.2d 153, 158 (1996) (taking judicial notice of similarity of procedures for testing breathalyzer machines and recording results); Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 202(b) (2002) (outlining other examples in which courts have taken judicial notice of certain facts in criminal cases).

III.

A.

Having addressed the Attorney General's motion, we now turn to the governing legal principles. The parties do not dispute that, in responding to the dispatched information, the officers subjected defendant to an investigatory stop (sometimes called an investigative detention). Consistent with the Fourth Amendment of the United States Constitution and its analog, Article I, paragraph 7 of the New Jersey Constitution, "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, 724 A.2d 234, 238 (1999) (internal citation and quotation marks omitted); Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979).

The "[r]easonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." State v. Stovall, 170 N.J. 346, 356, 788 A.2d 746 (2002). The standard requires "`some minimal level of objective justification for making the stop.'" State v. Nishina, 175 N.J. 502, 511, 816 A.2d 153, 159 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989)). The test is "highly fact sensitive and, therefore, not readily, or even usefully, reduced to a neat set of legal rules." Ibid. (internal citation and quotation marks omitted). For analytical purposes in this case, a stop founded on a suspected motor vehicle violation essentially is governed by the same case law used to evaluate a stop based on suspected criminal or quasi-criminal activity.

An informant's tip is a factor to be considered when evaluating whether an investigatory stop is justified. In that regard, we recently summarized the relevant principles followed by the United States Supreme Court and by this Court:

An anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal...