SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3799-97T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUKE GARBIN,
Defendant-Appellant.
_________________________________
Argued September 22, 1999 - Decided November 18, 1999
Before Judges Skillman and Newman.
On appeal from Superior Court of New Jersey,
Law Division, Camden County.
John H. Waller argued the cause for appellant
(Sufrin, Zucker, Steinberg, Waller & Wixted,
attorneys; Mr. Waller, on the brief).
Stephen R. Piper, Assistant Camden County
Prosecutor, argued the cause for respondent
(Lee A. Solomon, Camden County Prosecutor,
attorney; Mr. Piper, of counsel and on the
brief).
The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
Defendant was charged in the Pine Hill Municipal Court with
driving while under the influence of alcohol, in violation of
N.J.S.A. 39:4-50. Defendant moved to suppress the evidence
against him on the ground it had been obtained by means of an
unlawful search. Defendant also moved to dismiss the complaint
on the ground that he could not be found guilty of a violation of
N.J.S.A. 39:4-50 for operating a vehicle while under the
influence of alcohol in the garage of his own home.
At the hearing on the motions, Officer Browne of the Pine
Hill Police Department testified that in the late afternoon of
September 14, 1997, he was dispatched to defendant's home to
investigate a report of a possible fire. Upon his arrival, the
officer observed smoke coming from defendant's garage and smelled
burning rubber. The door to the garage started to open, but
after it rose approximately three feet, it came down. A little
while later, the door opened all the way, and the officer
observed a pickup truck with a person in the driver's seat. He
started to walk from the street towards the garage, but when he
got close, the door closed again. The officer pounded on the
garage door and said, "police department, open up the door." A
few seconds later, the door opened. As Officer Browne and
another officer entered the garage, they observed the tires of
defendant's truck spinning, creating smoke, and the front bumper
pushing against the rear of the garage. Officer Browne opened
the door of the truck and turned off the ignition. The officers
subsequently identified defendant as the person in the driver's
seat.
Based on this evidence, the municipal court judge concluded
that the officers' entry into defendant's garage and subsequent
actions within the garage were valid under the "community
caretaker doctrine." The judge also concluded that a violation
of N.J.S.A. 39:4-50 can be predicated upon the operation of a
motor vehicle within a private garage. In addition, the judge
indicated that the evidence would not support a finding that
defendant operated his truck outside the garage prior to the
officers' arrival on the scene.
Defendant then pled guilty to the charge, but conditioned
his plea on the right to appeal from the denial of his motions.
The municipal court judge sentenced defendant, who had a prior
conviction under N.J.S.A. 39:4-50, to a two-year suspension of
his driver's license and thirty days of community service. The
court also required defendant to spend forty-eight hours in the
intoxicated driver's resource center, fined him $500 and imposed
the statutorily mandated penalties, fees and costs.
On a de novo appeal, the Law Division judge concluded that
Officer Browne had properly entered defendant's garage to
determine whether there was a condition which posed an imminent
danger to persons or property and affirmed the denial of
defendant's motion to suppress. The judge also concluded that
defendant's operation of a vehicle within his own garage while
under the influence of alcohol constituted a violation of
N.J.S.A. 39:4-50. Accordingly, the judge affirmed defendant's
conviction and reimposed the same sentence.
Defendant argues that the police officers' warrantless entry into his garage violated his rights under the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. The State responds that the entry was valid under the community caretaking doctrine.
"It is now well recognized that in addition to investigating crimes, the police also engage in what has been 'described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" State v. Navarro, 310 N.J. Super. 104, 108 (App. Div. 1998) (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed.2d 706, 715 (1973)). The performance of these police responsibilities may provide the requisite authority for entry into a private residence without a warrant. State v. Scott, 118 N.J. 406 (1990), rev'g on dissent, 231 N.J. Super. 258, 269-77 (App. Div. 1989); State v. Navarro, supra, 310 N.J. Super. at 109-10. As former Chief Justice (then Judge) Burger observed in Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963):
[A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.
See also Mincey v. Arizona,
437 U.S. 385, 392-93,
98 S. Ct. 2408,
2413-14,
57 L. Ed.2d 290, 300 (1978); People v. Ray,
981 P.2d 928 (Cal. 1999); State v. Alexander,
721 A.2d 275 (Md. Ct. Spec.
App. 1998); State v. Leandry,
151 N.J. Super. 92, 97 (App. Div.
1977); see generally 3 Wayne R. LaFave, Search & Seizure: A
Treatise on the Fourth Amendment § 6.6 (3d ed. 1996); Debra
Livingston, Police, Community Caretaking, and the Fourth
Amendment, 1
998 U. Ch. Legal F. 261.
A police officer's observation of a person operating a motor
vehicle in a manner that indicates something may be wrong with
the vehicle or its driver is one recognized circumstance in which
the police may take appropriate action in the performance of
their community caretaking responsibilities. For example, in
State v. Martinez,
260 N.J. Super. 75, 78 (App. Div. 1992), we
stated that a police officer's observations of a motor vehicle
being driven at less than ten m.p.h. "suggest[ed] a number of
objectively reasonable concerns," including that "something might
be wrong with the car ... [or] its driver." Consequently, we
held that these concerns justified "the minimal intrusion
involved in a simple inquiry stop." Ibid. Similarly, in State
v. Goetaski,
209 N.J. Super. 362 (App. Div. 1986), we upheld the
validity under the community caretaking doctrine of a stop of a
person who was driving slowly on the shoulder of a state highway
with his left turn directional signal flashing. We concluded
that observations of such unusual operation of the vehicle
provided a reasonable basis for the police officer to believe
that there was something wrong with the vehicle or its driver.
Id. at 366.
The same considerations justified the police officers' entry
into defendant's garage. Their observations of smoke emanating
from the garage and the wheels of defendant's truck rapidly
spinning provided a reasonable basis for concern that there was
something wrong with the vehicle or its driver. Those
observations could have indicated that the car was stuck in a
driving gear, that the driver was unconscious or attempting to
commit suicide or, as turned out to be the case, that he was
highly intoxicated. Under these circumstances, the police
officers would have been remiss in the performance of their
community caretaking responsibilities if they had failed to
investigate further. Moreover, the officers' entry into
defendant's garage was not significantly more intrusive than the
motor vehicle stops involved in Goetaski and Martinez.
Therefore, the lower courts properly denied defendant's motion to
suppress.
Defendant argues that he could not be found guilty of a violation of N.J.S.A. 39:4-50, because the lower courts found that the evidence would not support a finding that he operated his vehicle outside his garage. Defendant relies upon the Supreme Court's statement of the holding in State v. Sweeney, 40 N.J. 359, 360-61 (1963):
[A] person "operates" -- or for that matter, "drives" -- a motor vehicle under the influence of intoxicating liquor, within the meaning of N.J.S.A. 39:4-50 and 39:4-50.1, when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle, and that in this case the trial court could clearly infer such intent from the evidence.
(Emphasis added).
Defendant also relies upon the statement in State v. Mulcahy,
107 N.J. 467, 477-78 (1987) that "when one in an intoxicated state
places himself behind the wheel of a motor vehicle and not only
intends to operate it in a public place, but actually attempts to
do so (even though the attempt is unsuccessful) and there is the
possibility of motion, he violates the statute." (Emphasis
added)(quoting State v. Stiene,
203 N.J. Super. 275, 279 (App.
Div. 1985)).
However, the only issue in Sweeney and Mulcahy was whether
the defendants could be found to have "operate[d]" their vehicles
within the intent of N.J.S.A. 39:4-50 even though they did not
actually drive them. The Court answered this question
affirmatively in both cases, concluding that Sweeney "operated"
his vehicle when he turned on the ignition with the intent to
drive and that Mulcahy "operated" his vehicle when he took his
keys and started to put them in the ignition with the intent to
drive. Because Sweeney was parked by the curb of a street, see
State v. Sweeney,
77 N.J. Super. 512, 514 (App. Div. 1962), and
Mulcahy was parked on a sidewalk, 107 N.J. at 469, the Court did
not have the occasion in either opinion to consider whether
N.J.S.A. 39:4-50 only applies to the operation of a motor vehicle
in a public or quasi-public place. Therefore, the statements in
those opinions relied upon by defendant are only dicta.
Although the Supreme Court has never considered the issue,
we held in two opinions that N.J.S.A. 39:4-50 applies to any
operation of a motor vehicle while under the influence of
alcohol. In State v. Magner,
151 N.J. Super. 451 (App. Div.
1977), the defendant was charged with driving while under the
influence in a private beach club parking lot from which the
general public was excluded. We characterized this parking lot
as a "nonpublic area," and stated that the issue presented was
whether N.J.S.A. 39:4-50 applies to "drunken or impaired driving
on private lands." Id. at 453. We noted that "if a motor
vehicle statute makes no references to offenses occurring on a
public highway, it is usually held that the statute applies
generally throughout the State." Id. at 454. We concluded that
N.J.S.A. 39:4-50 should be construed in accordance with this
principle to apply to "drunken operation of a motor vehicle,
irrespective of where it [takes] place," because "[o]peration of
a motor vehicle while under the influence of intoxicating liquor
holds no less threat of extraordinary danger of injury to the
driver and others or damage to property because that particular
folly is performed in a private place than it would were it to
occur in a quasi-public or public place." Id. at 453-54.
In State v. McColley,
157 N.J. Super. 525 (App. Div. 1978),
we reaffirmed our holding in Magner in a case involving the
operation of a motor vehicle in a moving company's private
parking lot. We stated in the course of our opinion that Magner
stands for the proposition that "the nature of the property on
which the driving occurred is irrelevant." Id. at 528.
Defendant argues that we should reject the holding in Magner
and McColley and construe N.J.S.A. 39:4-50 to apply only to
operation of a motor vehicle in a public or quasi-public place,
because a driver may be found guilty of refusing to submit to a
chemical test under the Implied Consent Law, N.J.S.A. 39:4-50.2
to 50.4a, only if the court finds that "the arresting officer had
probable cause to believe that the person had been driving or was
in actual physical control of a motor vehicle on the public
highways or quasi-public areas of this State while under the
influence ...." N.J.S.A. 39:4-50.4a (emphasis added). Defendant
contends that "if in order to obtain the proof of intoxication
necessary to convict a Defendant of [DWI], one [has] to operate
on a public or quasi-public area, the 'operation' required to
prove the substantive offense must likewise be on a public road,
street, highway or quasi-public area."
We decline to read the Implied Consent Law as limiting the
scope of the prohibition against operating a motor vehicle while
under the influence of alcohol. Initially, we note that the
prohibition against operation of a motor vehicle while under the
influence and the Implied Consent Law have separate legislative
histories. The prohibition against operation of a motor vehicle
while under the influence dates back to at least 1913. L. 1913,
c. 267. Although the prohibition originally applied only to the
operation of a motor vehicle "over any public street or highway,"
ibid., this limitation was omitted from the 1921 reenactment of
the state's motor vehicle laws. L. 1921, c. 208, § 14. In State
v. O'Grady,
19 N.J. Misc. 559, 563 (Bergen Cty. Ct. 1941), the
court concluded that "the legislature designedly omitted the ...
words [public street or highway] to enlarge the scope of
operation of the statute," 19 N.J. Misc. at 562, and that the
offense of driving while under the influence could be committed
in either a "public" or "private" place. Id. at 563. In Magner,
we referred to this same legislative history and concluded that
"[t]he failure to include language [in the 1921 Motor Vehicle
Act] limiting the offense to public streets and highways
persuades us that it was the intention of the Legislature to deal
with drunken operation of a motor vehicle, irrespective of where
it took place, for ordinarily a change in legislative language
signifies a purposeful alteration in the substance of the law."
151 N.J. Super. at 453.
In its original form, the Implied Consent Law would have
applied only to a person who operated a motor vehicle on a
"public road, street or highway." However, a representative of
the State Police pointed out during legislative hearings that
N.J.S.A. 39:4-50 had been interpreted to apply to operation under
the influence in places other than public roads, streets and
highways. Public Hearings on Senate Bill No. 8 [Driving While
Impaired] & Senate Bill No. 9 [Implied Consent] Before the Senate
Comm. on Law & Pub. Safety (1966), Feb. 28, 1966 hearing at 24A.
Thereafter, the bill was revised to provide that a person who
operates a motor vehicle in a "quasi-public area" is also subject
to the Implied Consent Law. Official Copy Reprint, Senate Bill
No. 9 of 1966. The legislative history does not indicate why the
reach of the Implied Consent Law was limited to a person who
operates a motor vehicle on "any public road, street or highway
or quasi-public area." However, we note that when the Implied
Consent Law was enacted, there were questions concerning its
constitutionality, Public Hearings on Senate Bill No. 8 & Senate
Bill No. 9, supra, Feb. 21, 1966 hearing at 21-28, and Feb. 28,
1966 hearing at 1A-8A, and one theory relied upon to support its
validity was that "driving upon the highway acted as ... consent
to the taking of samples of [the driver's] breath." State v.
Kenderski,
99 N.J. Super. 224, 230 (App. Div. 1968).
Consequently, the Legislature could have been concerned that it
would be more difficult to defend the constitutionality of the
statute if it extended to operation of a motor vehicle in private
places. Therefore, the difference in language between N.J.S.A.
39:4-50 and N.J.S.A. 39:4-50.4 does not mandate reconsideration
of Magner and McColley.
Moreover, we are mindful that Magner and McColley, which
construed N.J.S.A. 39:4-50 to apply to "drunken operation of a
motor vehicle, irrespective of where it [takes] place," Magner,
supra, 151 N.J. Super. at 454, were decided more than twenty
years ago. "[W]hen a statute has been judicially construed, the
failure of the Legislature subsequently to act is evidence of
legislative acquiescence in the construction given to the
statute." Cavuoti v. New Jersey Transit Corp.,
161 N.J. 107, 133
(1999). Legislative inaction is especially significant in a case
such as this, where the judicial construction is long-standing,
the statute deals with a subject that attracts substantial public
and legislative attention, and the statute has been amended on
numerous occasions subsequent to the judicial construction
without change in the pertinent language. See, e.g., L. 1981, c.
47, § 1; L. 1983, c. 129, § 1; L. 1986, c. 126, § 1; L. 1993, c.
296, § 6; L. 1997, c. 277, § 1.
We recognize that none of the cases which have interpreted
N.J.S.A. 39:4-50 have extended its reach as far as the garage of
a private residence. However, we do not perceive any basis under
the language of N.J.S.A. 39:4-50 to distinguish between operation
of a motor vehicle in a private garage and operation in other
private places such as the private parking areas involved in
Magner and McColley. Moreover, we note that operation of a motor
vehicle on private property can pose risks to the general public.
For example, in his highly intoxicated condition defendant could
have put his truck in reverse and gone crashing through the
garage door into the nearby street. The Legislature also could
have had a justifiable concern that operation of a motor vehicle
on private property while under the influence may cause injury or
death to the driver or other occupants of the property.
Affirmed.