SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-0842-95T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CORWIN BARRETT SEYMOUR
a/k/a MANUEL TORO,
Defendant-Respondent.
_________________________________________________________________
Submitted: January 29, 1996 - Decided: March
26, 1996
Before Judges Havey, D'Annunzio and
Braithwaite.
On appeal from the Superior Court of New
Jersey, Law Division, Hunterdon County.
Sharon B. Ransavage, Hunterdon County
Prosecutor, attorney for appellant (Harvey B.
Lester, Assistant Prosecutor, of counsel and
on the brief).
Wronko, O'Hara & Millerk attorneys for
respondent (Patrick O'Hara, Jr., Designated
Counsel, of counsel and on the brief).
The opinion of the court was delivered by
BRAITHWAITE, J.A.D.
Hunterdon County Indictment Number 95-04-00063-I charged
defendant with first degree possession of cocaine with intent to
distribute, N.J.S.A. 2C:35-5a(1) and b(1); second degree eluding,
N.J.S.A. 2C:29-2b; third degree possession of cocaine, N.J.S.A.
2C:35-10a(1); third degree hindering apprehension, N.J.S.A.
2C:29-3b(1); and fourth degree possession of drug paraphernalia
with intent to distribute, N.J.S.A. 2C:36-3. Following the
indictment, defendant moved to suppress the cocaine that was
thrown from his vehicle after the police signaled defendant to
stop. The Law Division Judge granted defendant's motion relying
on State v. Tucker,
136 N.J. 158 (1994). The State now appeals
by leave granted from the interlocutory order suppressing the
cocaine. We reverse.
The State does not contest the factual findings made by the
Law Division judge following the hearing on defendant's motion to
suppress. We recite those oral findings verbatim:
On January sixteenth, 1995, at approximately
10:34 pm, New Jersey State Trooper Richard
McDonnell and Timothy -- Trooper Smarth --
S M A R T H -- were patrolling in uniform on
Interstate 78 in a marked troop car. While
traveling westbound in the left lane of that
three-lane highway, Trooper McDonnell
observed several vehicles traveling some
distance ahead of him in the right lane
activating their brake lights and changing
lanes to pass a slower moving vehicle, and I
think I recall some vehicles moving from the
center lane into the left lane.
The slow moving vehicle was ultimately
identified as a brown Toyota driving in the
right lane and the trooper followed it from
the center lane for approximately one quarter
of a mile pacing it at approximately 40 miles
per hour. Trooper McDonnell decided to stop
this vehicle for careless driving and to
check on the condition of the driver.
Subsequently during the testimony, also
indicated one of the reasons was it was
impeding traffic. That may be a basis for
the careless driving.
Following the one quarter of a mile when he was behind the vehicle when he noticed no other erratic driving, he activated -
Trooper McDonnell that is -- activated the
overhead lights on the troop car in an effort
to have the Toyota pull over, and at that
point the Toyota's speed increased to 50
miles per hour. Trooper McDonnell then
activated his siren and through the public
address system directed the driver of the
vehicle to pull over.
The Toyota swerved on several occasions
onto the right shoulder without stopping and
returned to the right lane and speed
fluctuating between 35 and 50 miles per hour.
The swerving between the right lane and the
shoulder occurred a few more times and the
trooper observed the passenger throw a white
package out of the window.
The swerving continued or the pace with
the Toyota in front of the police car
continued for approximately one and one
quarter miles until the vehicle pulled over
on the right shoulder. The speed during this
period of time varied between 30 and 50 miles
an hour.
Trooper McDonnell approached the
driver's side of the vehicle and Trooper
Smarth approached the passenger side.
Neither occupant wore seat belts which
resulted in additional summonses.
Once the occupants of the vehicles [sic]
were secured, the troopers returned to the
vicinity of Milepost 13.2 where Trooper
McDonnell recovered a clear plastic bag
containing suspected cocaine on the grassy
portion of the shoulder. This is the area
where the troopers had observed the material
being thrown from the car.
The search of the vehicle revealed a
brown paper bag containing three plastic
containers of Inositol -- I N O S O T O L -
[sic] powder, commonly used as a cutting
agent to dilute cocaine, on the passenger
seat of the vehicle. The cocaine was
analyzed at the library -- the laboratory,
was determined to weigh approximately five
and a quarter ounces.
On this appeal, the State argues:
THE TRIAL COURT ERRED BY RULING THAT
DEFENDANT-RESPONDENT'S SUBSEQUENT ERRATIC
DRIVING DID NOT ATTENUATE COURT-RULED PRIMARY
TAINT ARISING FROM A NON-PRETEXTUAL ERROR IN
POLICE JUDGMENT IN ATTEMPTING TO MAKE A MOTOR
VEHICLE STOP.
The State asserts that the trial judge erred, based on these
facts, in concluding that Trooper McDonnell's signal to defendant
to stop his vehicle was without "articulable and reasonable
suspicion," and therefore unlawful. Delaware v. Prouse,
440 U.S. 648, 663,
99 S. Ct. 1391, 1401,
59 L. Ed.2d 660, 673 (1979). It
submits that the signal for defendant to stop his vehicle was a
reasonable exercise of a police officer's "community caretaking
function" and therefore lawful. State v. Goetaski,
209 N.J.
Super. 362, 365 (App. Div. 1986). In our view, resolution of
this appeal requires us to determine whether defendant had a
right to ignore Trooper McDonnell's signal to stop even if the
signal to stop was unlawful.
We begin our discussion of the argument raised by the State
by noting that when Trooper McDonnell signaled defendant to stop,
defendant was seized within the meaning of the Fourth Amendment
of the United State Constitution and Article I, Paragraph 7 of
the New Jersey Constitution. See 4 Wayne R. LaFave, Search and
Seizure, A Treatise on the Fourth Amendment, § 10.8(a) at 668
(3rd Ed. 1996). "We must here balance the competing interests
`a weighing of the gravity of the public concerns served by the
seizure, the degree to which the seizure advances the public
interest, and the severity of the interference with individual
liberty.'" State v. Goetaski, supra, 209 N.J. Super. at 364
(quoting Brown v. Texas,
443 U.S. 47, 51,
99 S. Ct. 2637, 2640,
61 L. Ed.2d 357 (1979)). Here, we are satisfied that public
concerns and interest are expressed in our eluding statute,
N.J.S.A. 2C:29-2b. Therefore, we must balance those public
concerns and interest with a motorist's right to ignore a law
enforcement officer's signal to stop even if the basis for the
signal is unlawful.
N.J.S.A. 2C:29-2b provides in pertinent part as follows:
Any person, while operating a motor
vehicle on any street or highway in this
State, who knowingly flees or attempts to
elude any police or law enforcement officer
after having received any signal from such
officer to bring the vehicle to a full stop
commits a crime of the third degree[.]
[Emphasis added.]
Here, defendant's conduct constitutes a violation of the statute.
After being signaled to stop, defendant continued to drive his
vehicle for one and one quarter miles. In addition, defendant
increased his speed from forty miles per hour to fifty miles per
hour and swerved several times onto the shoulder of the road.
During the swerving action, the speed of defendant's vehicle
fluctuated between thirty and fifty miles per hour.
We note that the eluding provision was enacted in 1981, and
was an amendment to the resisting arrest statute, N.J.S.A. 2C:29-2a. Cannel, New Jersey Criminal Code Annotated, comment 1 on
N.J.S.A. 2C:29-2 (1995). Further, it is no defense to a
resisting arrest prosecution that the "law enforcement officer
was acting unlawfully in making the arrest, provided he was
acting under color of his official authority and provided the law
enforcement officer announces his intention to arrest prior to
the resistance." N.J.S.A. 2C:29-2a.
The "non-defense" provision was enacted so as to make clear
that a person may not resist even an unlawful arrest. The "non-defense" language was necessary because the language of the
statute creates an offense only for resisting "a lawful arrest."
Ibid. (emphasis added); Cannel, supra, comment 3 on N.J.S.A.
2C:29-2. Moreover, the "non-defense" language is consistent with
our case law on this subject. Our cases hold that a citizen must
submit to "an arrest, legal or illegal." State v. Mulvihill,
57 N.J. 151, 155 (1979); State v. Washington,
57 N.J. 160, 162
(1970); State v. Koonce,
89 N.J. Super. 169, 184 (App. Div.
1965).
We are satisfied, however, that the Legislature did not
intend to have the "non-defense" language apply to the eluding
section of the statute. In 1979, prior to the amendment adding
eluding as an offense, the "non-defense" language provided: "It
is not a defense to a prosecution under this section that the law
enforcement officer was acting unlawfully in making the arrest .
. . ." N.J.S.A. 2C:29-2 (1979) (emphasis added). However, when
the eluding provision was added to the statute, the "non-defense"
language was changed to read as follows: "It is not a defense to
a prosecution under this subsection that the law enforcement
officer was acting unlawfully in making the arrest . . . ."
N.J.S.A. 2C:29-2 (1995) (emphasis added). As the eluding
provision is a separate subsection from the resisting arrest
provision, it is clear that the legislature's revision intended
to limit the applicability of the "non-defense" language to the
subsection therein contained. "[W]ords used in a statute carry
their ordinary and well-understood meanings." State v. Afanador,
134 N.J. 162, 171 (1993).
Although the "non-defense" language does not apply to the
eluding statute, the plain language of the eluding statute
requires a motorist to immediately stop his vehicle when signaled
by a law enforcement officer. The statute does not say that a
motorist must stop only when the law enforcement officer lawfully
signals the person to stop. The statute says "any signal."
N.J.S.A. 2C:29-2(b) (emphasis added). If the language of a
statute is "plain and clearly reveals the statute's meaning, the
court's sole function is to enforce the statute in accordance
with those terms." Phillips v. Curiale,
128 N.J. 608, 618
(1992).
As stated supra, the language of the resisting arrest
statute and our case law make it clear that a citizen must submit
to an arrest even if it is illegal. There are strong public
policy reasons supporting this position.
As Judge Conford stated in State v. Koonce, supra:
[I]t seems to us that an appropriate
accommodation of society's interests in
securing the right of individual liberty,
maintenance of law enforcement, and
prevention of death or serious injury not
only of the participants in an arrest fracas
but of innocent third persons, precludes
tolerance of any formulation which validates
an arrestee's resistance of a police officer
with force merely because the arrest is
ultimately adjudged to have been illegal.
Force begets force, and escalation into
bloodshed is a frequent probability. The
right or wrong of an arrest is often a matter
of close debate as to which even lawyers and
judges may differ. In this era of constantly
expanding legal protections of the rights of
the accused in criminal proceedings, one
deeming himself illegally arrested can
reasonably be asked to submit peaceably to
arrest by a police officer, and to take
recourse in his legal remedies for regaining
his liberty and defending the ensuing
prosecution against him.
[89 N.J. Super. at 183-84.]
We conclude that the same public policy considerations
require a defendant to bring his vehicle to a full stop
immediately after receiving any law enforcement officer's signal,
whether the officer's stop of the vehicle is legal or illegal.
Fleeing from the police in a motor vehicle with the police in
vehicular pursuit could endanger defendant, the officer, other
motorist, or pedestrians. Moreover, "one deeming himself
illegally [seized] can . . . take recourse in his legal remedies
for regaining his liberty and defending the ensuing prosecution
against him." Id. at 184. "At the same time, police officers
attempting in good faith, although mistakenly, to perform their
duties in effecting [a motor vehicle stop] should be relieved of
the threat of physical harm" that can result from a high speed
motor vehicle chase. Ibid.
Furthermore, the statute would have no meaning and be
rendered ineffective if a driver of a vehicle was not required to
stop when signaled to do so. There are many lawful reasons,
criminal and non-criminal, for a law enforcement officer to
signal a motorist to stop. See Cady v. Dombrowski,
413 U.S. 433,
441,
93 S. Ct. 2523, 2528,
37 L. Ed.2d 706, 715 (1973). See
also State v. Goetaski, supra, 209 N.J. Super. at 365. The
criminal penalty for failure to stop is to encourage compliance
with the officer's signal.
Having concluded that defendant had no right to ignore
Officer's McDonnell's signal and to continue driving for a mile
and a quarter, we are satisfied that Officer McDonnell had a
right to continue to pursue defendant and stop him. As set forth
herein, supra, defendant's continued driving after McDonnell's
signal constituted eluding. Because defendant was committing a
third-degree crime in the presence of Officer McDonnell, probable
cause existed to both seize and arrest defendant. Delaware v.
Prouse, supra, 440 U.S. at 663, 99 S. Ct. at 1401, 59 L. Ed.
2d
at 673; State v. Sims,
75 N.J. 337, 352 (1978). See also United
States v. Bailey,
691 F.2d 1009, 1012-19 (11th Cir. 1982), cert.
denied,
461 U.S. 933, 1
035 S. Ct. 2098,
77 L. Ed.2d 306 (1983).
During the pursuit by Officer McDonnell, defendant's
passenger threw five and one quarter ounces of cocaine out of the
vehicle window. By eluding the police, defendant cannot now
assert that the discarding of the cocaine was the result of the
illegal conduct of the police. The cocaine was thrown out of
defendant's car during the course of defendant's commission of a
criminal act. Had defendant obeyed Officer McDonnell's signal,
perhaps no criminal charge would have resulted. Or, had he been
charged, he would have had a basis to assert the illegality of
the police conduct in defense of any prosecution. State v.
Koonce, supra, 89 N.J. Super. at 184.
The State also argues that the seizure of defendant could be
justified under the "community caretaking function." State v.
Goetaski, supra, 209 N.J. Super at 365 (quoting Cady v.
Dombrowski, supra, 413 U.S. at 441, 93 S. Ct. at 2528, 37 L. Ed.
2d at 715)). However, in light of our holding, we see no need to
decide on this record whether the "community caretaking function"
would provide an alternative basis for defendant's seizure.
We note, however that our concurring colleague concludes
that the community caretaking function justified the police
action of signaling defendant to stop. We respectfully disagree
with his conclusion. Further, we are satisfied that State v.
Martinez,
260 N.J. Super. 75 (App. Div. 1992), relied upon by our
colleague, is factually distinguishable. In Martinez, the
Trooper testified that defendant was driving his vehicle after
2:00 a.m. "`travelling at a snail's pace . . . less than 10
[m.p.h.]', the operation was `abnormal' in the sense of being
excessively slow . . . ." Id. at 77. We are not prepared to
conclude on these facts that as a matter of law, "operating a
vehicle [in the right lane] at forty miles per hour on an
interstate highway at 10:30 p.m. is unusual conduct." Post at
concurring slip op. page 2 (D'Annunzio, J. concurring).
We further note, the trial court relied on State v. Tucker,
supra, in granting defendant's motion. This case is clearly
distinguishable and the court's reliance thereon was misplaced.
In Tucker, defendant engaged in no unlawful activity in running
when he observed the police. "[T]he sole basis asserted for
police action was the youth's flight." 136 N.J. at 168-69.
Here, defendant engaged in an unlawful activity, eluding, and
during the eluding discarded the cocaine, thereby giving the
police right to pursue and arrest defendant. The cocaine seized
as a result of these circumstances is admissible and not
violative of the Fourth Amendment of the United States
Constitution nor Article I, Paragraph 7 of the New Jersey
Constitution.
The order suppressing the cocaine is reversed and the matter
remanded to the trial court for proceedings consistent with this
opinion.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-0842-95T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CORWIN BARRETT SEYMOUR
a/k/a MANUEL TORO,
Defendant-Respondent.
_______________________________________________________________
D'ANNUNZIO, J.A.D. (Concurring)
I concur in the reversal of the order suppressing evidence.
The facts as found by the trial judge are uncomplicated.
The troopers observed traffic in the far right lane of Interstate
78 braking to avoid overtaking defendant's vehicle, which was
being operated at forty miles per hour. Under these
circumstances, the trial court erred when it determined that the
police had no articulable reasonable basis to stop defendant's
vehicle.
A reasonable suspicion of criminal behavior is not necessary
to justify a motor vehicle stop. See State v. Martinez,
260 N.J.
Super. 75 (App. Div. 1992); State v. Goetaski,
209 N.J. Super. 362 (App. Div.), certif. denied,
104 N.J. 458 (1986); cf. Cady v.
Dombrowski,
413 U.S. 433, 441,
93 S. Ct. 2523, 2528,
37 L.Ed.2d 706, 714-15 (1973) (noting that because of the extensive state
regulation of motor vehicles and traffic, police-citizen contact
involving automobiles frequently does not involve criminal
investigation but rather "community caretaking functions, totally
divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute"). I am
persuaded that operating a vehicle at forty miles per hour on an
interstate highway at 10:30 p.m. is unusual conduct. The
troopers observed the impact of defendant's speed on the flow of
traffic when they observed other vehicles traveling in the right
lane brake and move into other lanes to avoid overtaking and
colliding with defendant's slowly moving vehicle. Based on their
observations, I conclude that the troopers were constitutionally
justified in signaling defendant to stop by activating the police
vehicle's overhead lights. N.J.S.A. 39:4-97.1 supports the
validity of the police action in this case because it prohibits
operation of a motor vehicle "at such a slow speed so as to
impede or block the normal and reasonable movement of traffic
. . . ."
The present case is similar to State v. Martinez, supra,
260 N.J. Super. 75. In that case the police stopped a vehicle
traveling at ten miles an hour in a twenty-five miles per hour
residential zone. We made the following observations:
We take notice, however, that operation
of a motor vehicle in the middle of the night
on a residential street at a snail's pace
between five and ten m.p.h. is indeed
"abnormal," as the Trooper testified. Such
abnormal conduct suggests a number of
objectively reasonable concerns: (a)
something might be wrong with the car;
(b) something might be wrong with its
driver; (c) a traffic safety hazard is
presented to drivers approaching from the
rear when an abnormally slow moving vehicle
is operated at night on a roadway without
flashers; (d) there is some risk that the
residential neighborhood is being "cased" for
targets of opportunity. Possibilities (a),
(b) and (c) involve the "community caretaking
function" expected of alert police officers.
See Cady v. Dombrowski,
413 U.S. 433, 441,
93 S. Ct. 2523, 2528,
37 L. Ed.2d 706 (1973);
Goetaski, supra, 209 N.J. Super. at 365,
507 A.2d 751; State v. Marcello,
599 A.2d 357,
358 (Vt. 1991); State v. Pinkham,
565 A.2d 318, 319 (Me. 1989).
[Id. at 78.]
In Martinez we affirmed the trial court's denial of
defendant's motion to suppress. The present case provides a more
compelling reason for a police stop of defendant's vehicle
because the police observed the adverse impact of defendant's
speed on "the normal and reasonable movement of traffic. . . ."
N.J.S.A. 39:4-97.1.
In State v. Tucker,
136 N.J. 158 (1994), the Court held that
the police were not constitutionally justified in pursuing
defendant merely because he had run away after seeing the
approach of a marked police car. Tucker is distinguishable
because the present case involves the caretaking function
inherent in traffic regulation and oversight, and, as previously
indicated, defendant's slow speed justified police intervention.