STATE OF NEW JERSEY VS. JENNIFER R. WIGGINS(15-01-0010, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1487-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JENNIFER R. WIGGINS,

Defendant-Appellant.
___________________________________

Submitted May 2, 2017 – Decided May 31, 2017

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Indictment No. 15-01-0010.

Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on the
brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Arielle E. Katz,
Deputy Attorney General, of counsel and on the
brief).

PER CURIAM

The principal issue in this appeal pertains to the community

caretaking exception to the warrant requirement. See, e.g., Cady
v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed.

2d 706, 714-15 (1973); State v. Scriven, 226 N.J. 20, 38 (2016);

State v. Bogan, 200 N.J. 61, 78-80 (2009); State v. Diloreto, 180

N.J. 264, 275-76 (2004). Invoking that exception to justify a

motor vehicle stop, the trial court denied defendant's motion to

suppress drugs and weapons discovered after the stop. Defendant

Jennifer Wiggins subsequently pleaded guilty to two counts of

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b), and fourth-degree possession of marijuana, N.J.S.A. 2C:35-

10(a)(3). Pursuant to the plea agreement, the court sentenced her

to an aggregate term of five years imprisonment, with forty-two

months of parole ineligibility.

Defendant challenges the court's denial of her suppression

motion. She also contends, for the first time on appeal, that her

conviction was barred by L. 2013, c. 117. We affirm.

I.

The trial court credited the testimony of the sole witness

at the suppression hearing, Vineland Police Officer Mustafa

Ozdemir. He testified that shortly before midnight on September

2, 2013, while working alone on drunk driving patrol, he observed

2 A-1487-15T1
a Honda Accord with a non-working center brake light1 as it

approached an intersection. Viewing the non-working light as a

safety hazard, Ozdemir performed a traffic stop in order to inform

the driver the light was not working. He admitted that he also

believed the non-working light was a motor vehicle violation.2

Ozdemir parked behind the Honda and cautiously approached the

vehicle on the passenger side. He observed a frontseat passenger

hand a bag of green vegetation to a backseat passenger. At that

point, the officer's concern about the brake light apparently

receded. The officer then illuminated his flashlight, announced

his presence, and asked the driver for credentials. During this

initial exchange, he detected the odor of burnt marijuana and

noticed that the three occupants appeared to have bloodshot eyes.

Backup soon arrived. In the course of the police officers'

subsequent investigation, they seized marijuana; discovered and

seized one handgun and crack cocaine in the possession of a

1
Also called a "cyclops brake light," the light is defined under
N.J.S.A. 39:3-66.3 as a "high-mounted rear stoplight on the
vertical centerline."
2
He stated, "As part of my community care taking, as I explained
earlier, you — we have — a reasonable person would believe that a
motor vehicle violation was, in fact, occurring. And, as part of
the community care taking, one of our duties is to advise the
community of possible hazards."

3 A-1487-15T1
passenger who was patted down; and discovered another handgun

partly under the front passenger seat, which was later seized.3

The trial judge credited the officer's stated reason for

stopping the vehicle — to inform the driver of the non-working

light. The court rejected the argument that reference to the

light was a pretext for an investigatory stop. In the judge's

view, the officer's cautious approach to the vehicle was not

inconsistent with his purpose in conducting the stop.

The court relied in part on three of our decisions sustaining

traffic stops based on the community caretaking exception: State

v. Cohen, 347 N.J. Super. 375 (App. Div. 2002), State v. Martinez,

260 N.J. Super. 75 (App. Div. 1992), and State v. Goetaski, 209

N.J. Super. 362 (App. Div.), certif. denied, 104 N.J. 458 (1986),

which we discuss at greater length below. The judge concluded

that although a non-functioning center brake light was not then a

motor vehicle violation, the center light nonetheless enhanced

vehicle safety. Its inoperability therefore posed a safety hazard,

and the officer was justified in stopping the vehicle under the

community caretaking exception.

On appeal, defendant contends:

3
According to the trial judge, a vehicle search pursuant to a
warrant also led to the seizure of bullets, as well as heroin and
additional cocaine. Defendant does not challenge the legality of
any of the post-stop searches and seizures.

4 A-1487-15T1
 POINT I

THE STOP OF THE DEFENDANT'S CAR, PURPORTEDLY
JUSTIFIED UNDER THE "COMMUNITY CARETAKING"
EXCEPTION TO THE WARRANT REQUIREMENT,
CONSTITUTED AN UNLAWFUL SEIZURE, AND ITS
RESULT MUST THEREFORE BE SUPPRESSED. U.S.
CONST., AMEND. IV; N.J. CONST. (1947), ART.
1, PAR. 7.

POINT II

THE SEIZURE OF GUNS OCCURRED DURING THE
STATUTORY AMNESTY PERIOD. ACCORDINGLY,
POSSESSION OF THOSE GUNS CANNOT CONSTITUTE A
CRIME, AND DEFENDANT'S PLEA MUST BE VACATED.
(NOT RAISED BELOW).

II.

On a motion to suppress, we are bound to defer to the trial

court's findings supported by sufficient credible evidence in the

record, particularly when they are grounded in the judge's feel

of the case and ability to assess the witnesses' demeanor and

credibility. State v. Robinson, 200 N.J. 1, 15 (2009); State v.

Elders, 192 N.J. 224, 243-44 (2007). We review issues of law de

novo. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).

"The community-caretaking doctrine recognizes that police

officers provide a wide range of social services outside of their

traditional law enforcement and criminal investigatory roles."

Scriven, supra, 226 N.J. at 38 (internal quotation marks and

citations omitted). The doctrine provides an independent

justification for intrusions into citizens' liberty that would

5 A-1487-15T1
otherwise require a showing of probable cause or reasonable and

articulable suspicion of criminal behavior. Diloreto, supra, 180

N.J. at 276. In applying the doctrine, the courts have long

recognized the importance of law enforcement's concern for the

proper and safe operation of automobiles. See Cady, supra, 413

U.S. at 441, 93 S. Ct. at 2528, 37 L. Ed. 2d at 714-15 (establishing

the doctrine within the context of state regulation of vehicles).

Our Supreme Court has found that the community caretaker role

permits officers to "check on the welfare or safety of a citizen

who appears in need of help on the roadway without securing a

warrant or offending the Constitution." Scriven, supra, 226 N.J.

at 38.

The doctrine entails a two-part inquiry. First, a court must

ask whether the officer has reacted to an objectively reasonable

community concern. Id. at 39 (stating that officers must have an

"objectively reasonable basis" to stop a vehicle to provide aid

or check a motorist's welfare); Diloreto, supra, 180 N.J. at 278

("[T]he caretaker doctrine permits the police to exceed a field

inquiry's level of intrusiveness, provided that their action is

. . . objectively reasonable under the totality of

circumstances."); see also State v. Drummond, 305 N.J. Super. 84,

88 (App. Div. 1997).

6 A-1487-15T1
 That concern must serve as a distinct motivation for the

officer's conduct, divorced from any desire to further a criminal

investigation. In other words, community caretaking may not serve

as a pretext for a warrantless intrusion into a citizen's liberty

that does not satisfy another warrant exception. Bogan, supra,

200 N.J. at 77; see Diloreto, supra, 180 N.J. at 280. However,

the "divorce" between the two police functions "need only relate

to a sound and independent basis for each role, and not to any

requirement for exclusivity in terms of time or space." Bogan,

supra, 200 N.J. at 77 (quoting State v. D'Amour, 834 A.2d 214, 217

(N.H. 2003)). Notably, an officer may engage in community

caretaking concurrently with a criminal investigation. Ibid.

Second, the court must discern whether the actions taken by

an officer pursuant to his community caretaking remained within

the limited scope justified by the caretaking function. As with

all police stops, the officer's conduct must be "reasonably related

in scope to the circumstances which justified the interference in

the first place." State v. Dickey, 152 N.J. 468, 476 (1998)

(quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20

L. Ed. 2d 889, 905 (1968)). Moreover, an officer's "community

caretaking inquiry must not be 'overbearing or harassing in

nature.'" Drummond, supra, 305 N.J. Super. at 89 (quoting State

v. Davis, 104 N.J. 490, 503 (1986)).

7 A-1487-15T1
 As these legal standards imply, the two-part application of

the community caretaking doctrine is a fact-sensitive inquiry. In

several cases, we have found that police had an objectively

reasonable basis to engage in community caretaking. For example,

in Cohen, supra, 347 N.J. Super. at 380-81, we stated that police

were authorized to conduct a stop to inspect darkly-tinted windows

that obstructed vision and posed an apparent "hazardous vehicular

condition." In Martinez, supra, 260 N.J. Super. at 77-78, we

authorized a stop of a vehicle travelling less than ten m.p.h. in

a twenty-five m.p.h. residential zone without flashers at 2:00

a.m. because there were reasonable concerns that the driver was

in distress, the vehicle was disabled, or the slow driving posed

a hazard to other motorists. And in Goetaski, supra, 209 N.J.

Super. at 364-65, we held the officer was justified in stopping a

motorist driving slowly at 4:00 a.m., with a left blinker flashing,

while on the shoulder of a rural state highway.

In addition to circumstances presented in Cohen, Martinez,

and Goetaski, which the trial court cited, we have relied upon the

community caretaking doctrine in ruling that police were

authorized to stop a vehicle at 12:20 a.m. after it was weaving

within its lane at thirty-six m.p.h. in a forty-five m.p.h. zone.

State v. Washington, 296 N.J. Super. 569, 571-72 (App. Div. 1997).

Police were also authorized by the doctrine to investigate a

8 A-1487-15T1
parked, darkened car at a closed car wash at 11:44 p.m. Drummond,

supra, 305 N.J. Super. at 86-88. In both cases, officers

reasonably suspected that the occupants might be in distress, pose

a threat to others, or need assistance.

On the other hand, distinguishing Goetaski, Martinez, and

Washington, the Court in Scriven held the trial court correctly

determined that the community caretaking doctrine did not

authorize an officer to stop a motorist who was operating his high

beams under circumstances that did not affect oncoming vehicles

or otherwise affect the safety of others. Scriven, supra, 226

N.J. at 36, 38-40. The Court noted that the driver's use of his

high beams "did not suggest that the driver of the car was impaired

or that the vehicle had a problem." Id. at 39 (internal quotation

marks omitted). The Court recognized that an officer may instruct

a driver to dim high beams if their brightness impairs an officer's

or road workers' ability to perform tasks; yet, the officer in

Scriven stopped the vehicle for a different reason — he mistakenly

and unreasonably believed the driver violated N.J.S.A. 39:3-60.

Id. at 39-40.

Similarly, in State v. Cryan, we found that the community

caretaking doctrine did not justify a stop when the driver merely

paused for about five seconds after a stoplight turned green at

9 A-1487-15T1
approximately 4:24 a.m.4 Cryan, supra, 320 N.J. Super. at 327,

331. Simply put, that delay was not enough for an objectively

reasonable officer to conclude that the driver was experiencing

difficulty, thereby posing a hazard to himself or others. Id. at

331.

Applying these principles, we discern no error in the trial

court's decision. Given our standard of review, we are constrained

to defer to the trial judge's determination that the officer

stopped the Honda in order to advise the driver of the non-working

brake light. The judge rejected the argument that the brake light

condition was a pretext to conduct an investigatory stop.

We also discern no error in the court's conclusion that the

stop furthered the community caretaking purpose. Although the law

had not yet required motorists to maintain operational center

brake lights,5 it is evident nonetheless that the light serves the

purpose of making vehicles safer. The center brake light's obvious

design is to alert following drivers that a vehicle's brakes have

been applied and it is about to slow or stop. As the center brake

4
By contrast, a significant delay may justify an objectively
reasonable concern about the driver's welfare, or raise a
reasonable and articulable suspicion that his inattentiveness was
due to intoxicants.
5
The Legislature required center brake lights in cars made after
1985 when it adopted L. 2013, c. 230, § 2, which became effective
on March 1, 2014.

10 A-1487-15T1
light may be more noticeable than the other lower-situated brake

lights, it may prompt the following driver to slow sooner and help

avoid rear end collisions.

The officer observed that the brake light was not working.

That equipment condition affected the safety of the passengers in

the vehicle and those in any vehicle that might follow it. Unlike

cases involving a slow travelling vehicle, where an officer may

only suspect equipment trouble or other distress, the equipment

trouble in this case was readily apparent to the officer.

Consistent with the principles of the community caretaking

doctrine, the officer was authorized to conduct a limited traffic

stop to advise the driver of the Honda that the brake light was

not working.

The scope of the officer's inquiry was also appropriate. It

bears repeating that, consistent with the principles enumerated

in Dickey, an officer may not expand a community caretaking stop

into a free-ranging investigatory stop. Notably, however, our

courts have consistently found that traffic stops are an

appropriate means of responding to a reasonable community

caretaking concern. See Cohen, supra, 347 N.J. Super. at 380-81;

Martinez, supra, 260 N.J. Super. at 77-78; Goetaski, supra, 209

N.J. Super. at 364-65. We have acknowledged an officer need not

simply permit a community hazard to pass by. The law does not

11 A-1487-15T1
dictate the precise manner in which officials may perform their

caretaking function. See Bogan, supra, 200 N.J. at 81 (noting

that, when applying the community caretaking doctrine, "[t]he

question is not whether the police could have done something

different, but whether their actions, when viewed as a whole, were

objectively reasonable").

We hasten to add, however, that if the purpose of a stop is

to advise a motorist of non-operational equipment that does not

constitute a motor vehicle violation, it is questionable whether

the officer can go beyond that purpose and even request the

driver's credentials. Cf. Scriven, supra, 226 N.J. at 40 (noting

that the officer did not simply "signal to the driver to dim her

high beams because they were interfering with his mission," but

instead effectuated a motor vehicle stop because he unreasonably

believed the driver violated the law). As the United States

Supreme Court has held, absent applicability of a warrant

exception, "stopping an automobile and detaining the driver in

order to check his driver's license and the registration of the

automobile are unreasonable under the Fourth Amendment." Delaware

v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d

660, 673 (1979).

However, we need not define in detail the scope of activity

authorized by the community caretaking doctrine in a case like

12 A-1487-15T1
this. As the officer approached the vehicle, he observed the

frontseat passenger hand off a bag of green vegetation. That

plain view observation provided a new and separate crime-fighting-

related basis to continue the stop. See Bogan, supra, 200 N.J.

at 379-80 (noting the plain view doctrine permitted an officer to

question and detain the defendant without "judicial permission"

after the officer had lawfully entered the apartment where

defendant was hiding pursuant to the community caretaking

doctrine).

We acknowledge that the State now asserts an alternative

basis for sustaining the stop. Citing Heien v. North Carolina,

___ U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014), and State

v. Sutherland, 445 N.J. Super. 358 (App. Div.), leave to appeal

granted, ___ N.J. ___ (2016), the State contends that the officer

had a reasonable and articulable suspicion of a violation of

N.J.S.A. 39:3-66.3, even though the Legislature did not require

center brake lights until several months after the stop. The

State apparently did not press this argument before the trial

court, nor did the trial court address it.6 Inasmuch as we affirm

the trial court's decision grounded in the community caretaker

6
We do not have the State's trial court brief. However, in oral
argument, which occurred before Heien and Sutherland were decided,
the assistant prosecutor relied upon the community caretaking
function as a basis for the stop.

13 A-1487-15T1
doctrine, we need not address whether a reasonable mistake of law

might have justified the stop.

In sum, the trial court did not err in denying defendant's

motion to suppress.

III.

Defendant contends her conviction should be set aside

because, under L. 2003, c. 117, her possession of guns in September

2013 was not a crime. We disagree.

The statute upon which defendant relies states:

Any person who has in his possession a handgun
in violation of subsection b. of [N.J.S.A.
2C:39-5] . . . on the effective date of this
act [August 8, 2013] may retain possession of
that handgun . . . for a period of not more
than 180 days after the effective date of this
act. During that time period, the possessor
of that handgun . . . shall:

(1) transfer that firearm to any person
lawfully entitled to own or possess it; or

(2) voluntarily surrender that firearm
pursuant to the provisions of [N.J.S.A. 2C:39-
12].

[L. 2013, c. 117, § 1.]

Under N.J.S.A. 2C:39-12, a person will not be held criminally

liable for possessing a firearm "if after giving written notice

of his intention to do so . . . he voluntarily surrendered the

weapon[.]"

14 A-1487-15T1
 Defendant had the burden to prove the amnesty law applied to

her, as it served her interest to do so, and the amnesty law did

not create an element of the offenses charged. See N.J.S.A. 2C:1-

13(d) (stating that the burden of proof for a finding of fact that

is not an element of the offense rests on the party whose interests

will be furthered if the finding were made). She has failed to

do so. Instead, she admitted in her plea colloquy that she

violated N.J.S.A. 2C:39-5 in September 2013.

According to the statute's plain language, see In re Kollman,

210 N.J. 557, 568 (2012) (stating if the statute's plain language

is clear, the court's interpretative task is complete), it applies

only to persons in possession of a weapon on the effective date.

See State ex rel. C.L.H.'s Weapons, 443 N.J. Super. 48, 56 (App.

Div. 2015). Defendant presented no evidence that she possessed

the firearms on August 8, 2013, that she provided written notice

to authorities, or that she voluntarily surrendered the firearms.

The statute was not intended to shield from prosecution a person

who "voluntarily surrender[s]" a weapon only "after it has already

been seized" by authorities. Id. at 56-57 (internal quotation

marks omitted). In sum, the statute has no impact on her

conviction.

Affirmed.

15 A-1487-15T1