NOT FOR PUBLICATION WITHOUT THE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-5318-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRYANT I. THOMPSON, a/k/a
THOMPSON BRYANT,
Defendant-Appellant.
______________________________
Submitted May 3, 2017 – Decided June 23, 2017
Before Judges Accurso, Manahan and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 12-01-0061.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy
Public Defender II, of counsel and on the
brief; Jodie Van Wert, Designated Counsel,
on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah E. Ross,
Deputy Attorney General, of counsel and on
the brief).
PER CURIAM
Following the denial of his motion to suppress evidence
seized in a warrantless search, defendant Bryant I. Thompson
pled guilty to third-degree possession of cocaine, N.J.S.A.
2C:35-10a(1), and was sentenced in accordance with a negotiated
agreement to five years' special probation conditioned on his
successful completion of the drug court program. Defendant
appeals from the denial of his motion to suppress the drugs
found in his car. He contends the officer's belief, in 2011,
that N.J.S.A. 39:3-66 required the car to have more than two
operating brake lights was an unreasonable mistake of law.
Defendant asserts the stop, which was based on a broken third
brake light, was thus invalid. Because we agree that at the
time of the stop, N.J.S.A. 39:3-66 unambiguously required cars
to have only two functioning brake lights, one on each side, we
reverse the denial of defendant's suppression motion.
At the suppression hearing, the arresting officer testified
he was on patrol in Vineland on September 22, 2011, when he
"noticed [defendant's] third brake light was out, the one in the
middle of the back windshield." When the officer "got up close
enough," he also "could see that [defendant] had an object
hanging from his rearview mirror." Asked if he could recall
what the object was, the officer testified he "believed it was a
Christmas tree air freshener."
2 A-5318-14T1
The officer pulled defendant over and approached the
driver's side of the car to request defendant's credentials.
According to the officer, his attention was drawn to defendant's
left hand as defendant reached across his body toward his right
pocket. Looking into defendant's lap, the officer saw a clear
plastic bag of what appeared to be marijuana, which defendant
was trying to conceal with his cell phone. The officer asked
defendant to step out of the car and arrested him. Another
officer searched defendant and discovered cocaine in a pocket of
his jeans.
On cross-examination, the officer was forced to concede he
did not note what it was he saw hanging from defendant's mirror
in his report of the stop. He further admitted the object was
also not identified in the return of the search warrant he
subsequently obtained for defendant's car.
Defendant testified at the suppression hearing. He claimed
he was driving his grandmother's car, and the object hanging
from the rearview mirror was her handicap placard. Although
admitting he had a cell phone in his lap, he claimed the
marijuana was hidden beneath his seat, out of view of the
officer. He testified he was "not sure" whether his third brake
light was out.
3 A-5318-14T1
After listening to that testimony, the judge placed his
findings on the record. The judge found that while on patrol,
the officer observed "Mr. Thompson's vehicle pass him . . . and,
observe[d], at that point in time, that one of the brake lights
was not working on the back of the car Mr. Thompson was
operating, which appears to . . . be Mr. Thompson's
grandmother's car." The judge found the officer "says that when
he does get behind [defendant's] motor vehicle, at that point,
for the first time, [the officer] notices something hanging from
the rearview mirror." The judge continued:
He testified that [he] believed that
this – today, that it was an air freshener.
But, Mr. Thompson indicates that it was a
handicap parking placard that belonged to
his grandmother. But, in any event, it's
not that it matters, there's apparently
something hanging, from all accounts, from
the rearview mirror, as well.
. . . .
Mr. Thompson took the stand. He
testified . . . pretty consistent with
everything that [the officer] had said.
. . . .
I find that, for the most part, the
testimony of the two was pretty consistent,
except for that one critical period where
[the officer] indicates that he . . . saw
the marijuana on Mr. Thompson's lap; and,
Mr. Thompson indicates it was under the
seat, and out of plain view.
4 A-5318-14T1
However, I find Mr. Thompson's
testimony, that was otherwise credible, to
be not credible as to that particular series
of events. He was not clear; he was
stumbling. And, I believe that [the
officer's] testimony was credible in that
regard. Also, I believe that Mr. Thompson's
testimony, where he said he was arrested for
the marijuana, when he got out of the car,
to be consistent with exactly what happened,
according to [the officer].
So, based upon those factual findings,
I do believe that the plain view exception
sustains the officer's search of Mr.
Thompson and his arrest. And, his
subsequent search, incident to arrest,
wherein the cocaine was found.
Defendant appeals, raising the following issues:
POINT I
THE OFFICER DID NOT HAVE AN OBJECTIVELY
REASONABLE BASIS FOR BELIEVING THAT
DEFENDANT HAD COMMITTED MOTOR VEHICLE
VIOLATIONS, THEREFORE THE TRAFFIC STOP WAS
UNCONSTITUTIONAL AND EVIDENCE SEIZED AS A
FRUIT OF THE STOP SHOULD BE SUPPRESSED AND
THE CONVICTION REVERSED.
A. In 2011, N.J.S.A. 39:3-66 Did Not
Require A Vehicle To Have More Than Two Stop
Lights.
B. N.J.S.A. 39:3-74 prohibits only those
objects hanging from a rearview mirror that
unduly interfere with the driver's vision.
C. Neither of the officer's purported
reasons provided an objectively reasonable
basis for the traffic stop.
5 A-5318-14T1
POINT II
THE COURT MISTAKENLY PREMISED ITS
CREDIBILITY FINDINGS ON TESTIMONY NOT IN
THE RECORD.
Our standard of review on a motion to suppress is well
established. We are obligated to uphold the factual
findings underpinning the trial court's decision "so long as
those findings are supported by sufficient credible evidence in
the record." State v. Gamble, 218 N.J. 412, 424 (2014).
Deference "is required because those findings 'are substantially
influenced by [an] opportunity to hear and see the witnesses and
to have the "feel" of the case, which a reviewing court cannot
enjoy.'" Id. at 424-25 (quoting State v. Johnson, 42 N.J. 146,
161 (1964)). Our review of the trial court's application of the
law to the facts, of course, is plenary. State v. Hubbard, 222
N.J. 249, 263 (2015).
In 2011 at the time of this stop, N.J.S.A. 39:3-61(a)
required every motor vehicle to
be equipped on the front with at least 2
headlamps, an equal number at each side, and
with 2 turn signals, one on each side; and
on the rear with 2 tail lamps, 2 stop lamps,
2 turn signals and 2 reflectors, one of each
at each side; except that a passenger
vehicle manufactured before July 2, 1954,
and registered in this State may be equipped
with one stop lamp, one reflector and one
6 A-5318-14T1
tail lamp and is not required to be equipped
with turn signals.1
N.J.S.A. 39:3-66 required that "[a]ll lamps, reflectors and
other illuminating devices" required by Article 3 are to "be
kept clean and in good working order."
Defendant maintains the language of N.J.S.A. 39:3-61(a) was
"plain and unambiguous," in requiring passenger cars to have
only two brake lights at the time he was stopped, and that the
officer's erroneous reading rendered the stop unlawful in accord
with our decision in State v. Puzio, 379 N.J. Super. 378, 380
(App. Div. 2005).2
1
The statute was amended effective March 1, 2014 to substitute,
"'two or more stop lamps, as prescribed by section 2 of P.L.
2013, c. 230 (C.39:3-66.3)' for '2 stop lamps' in the first
sentence." N.J.S.A. 39:3-66.3 is a new statute, effective the
same date, which is specific to stoplights. The statute
provides, in pertinent part, that "[e]very motor vehicle, other
than a motorcycle, shall be equipped on the rear with at least
two stoplights, one at each side of the vertical centerline at
the same height and as far apart as practical," and that "[a]ll
passenger automobiles manufactured on or after September 1,
1985, shall, in addition, be equipped with a high-mounted rear
stoplight on the vertical centerline."
2
Although defendant challenged the stop's legality at the
suppression hearing, cross-examining the officer about his
reasons for the stop, defendant did not raise the mistake of law
issue in the trial court. The State has not defended on that
basis, however, instead urging that we take up the issue and
follow Heien. Heien v. North Carolina, 574 U.S. , 135 S. Ct.
530, 190 L. Ed. 2d 475 (2014). We thus conclude the Supreme
Court's admonition in State v. Witt, 223 N.J. 409, 419 (2015),
against addressing a defense argument first raised in this court
at the risk of unfairly prejudicing the State, does not apply.
7 A-5318-14T1
In Puzio, we held that an officer who misunderstood the
meaning of a statute did not have an objectively reasonable
basis for believing a defendant had violated the law. Id. at
380. More specifically, we found an officer's "entirely
erroneous reading" of a motor vehicle law to be utterly unlike
the more usual circumstance where "the officer correctly
understands the statute but arguably misinterprets the facts" of
whether a violation had occurred. Id. at 382.
In the latter, more usual case, our courts uphold stops
even when the officer's testimony will not support a violation
of the law on which the stop was premised beyond a reasonable
doubt, because the officer need only have a reasonable and
articulable suspicion of a motor vehicle violation for a stop.
See State v. Locurto, 157 N.J. 463, 470 (1999). So, for
example, if the motor vehicle law requires a car to have two
working brake lights, a stop based on the officer's testimony
that she saw only one working light will be upheld, even if the
State cannot prove at trial that one of the lights was broken.
All the State needs to establish is that the officer entertained
a reasonable belief that a traffic law was violated. Puzio,
supra, 379 N.J. Super. at 383.
Upholding a stop where the officer has misinterpreted a
clearly written statute, however, is different. An officer who
8 A-5318-14T1
mistakenly believes a car needs three operating brake lights
when the law requires only two, lacks an objective basis for
stopping a car with only two working brake lights. As we
explained in Puzio,
[i]f officers were permitted to stop
vehicles where it is objectively determined
that there is no legal basis for their
action, "the potential for abuse of traffic
infractions as pretext for effecting stops
seems boundless and the costs to privacy
rights excessive." [United States v. Lopez-
Valdez, 178 F.3d 282, 289 (5th Cir. 1999).]
We cannot countenance an officer's
interference with personal liberty based
upon an entirely erroneous understanding of
the law.
[379 N.J. Super. at 384.]
The State argues that because N.J.S.A. 39:3-66 requires
"that 'all' illuminating lights be in 'good working order,'" the
officer had an objectively reasonable basis for stopping
defendant when he noticed defendant's third brake light was out.
But the State neglects a key phrase appearing between the words
it quotes from N.J.S.A. 39:3-66. The statute provides that
"[a]ll lamps, reflectors and other illuminating devices required
by this article shall be kept clean and in good working order."
(Emphasis added). As N.J.S.A. 39:3-61(a) in 2011 required
passenger cars to have only two rear brake lights, it is plain
that N.J.S.A. 39:3-66 did not require defendant to keep his
9 A-5318-14T1
third brake light "in good working order" and thus provided no
basis for the stop.
The State maintains, however, that even assuming the
officer's
interpretation of N.J.S.A. 39:3-66 was
incorrect, and, as it was later learned,
there was actually no reasonable suspicion
to believe that defendant had violated this
motor-vehicle offense, the stop was still
lawful because . . . [the officer's]
interpretation of the tail light statute was
based on an objectively reasonable mistake
of law.
We disagree.
The State relies for its argument on the United States
Supreme Court's decision in Heien v. North Carolina, 574
U.S. , ___, 135 S. Ct. 530, 539, 190 L. Ed. 2d 475, 486
(2014), in which the Court held that the Fourth Amendment is not
violated when an officer makes a traffic stop based on an
objectively reasonable mistake of law. But Heien is of no avail
to the State here, because the officer's misreading of N.J.S.A.
39:3-61(a) or 39:3-66 cannot be characterized as reasonable.
As to brake lights, there is no ambiguity in either
statute. Prior to the amendment of Title 39 to require "a high-
mounted rear stoplight on the vertical centerline" for all
passenger cars manufactured on or after September 1, 1985,
N.J.S.A. 39:3-61(a) required "[e]very motor vehicle . . . be
10 A-5318-14T1
equipped . . . on the rear with 2 tail lamps, 2 stop lamps, 2
turn signals and 2 reflectors, one of each at each side," and
N.J.S.A. 39:3-66 required those lamps to "be kept clean and in
good working order." The language of both statutes is clear and
"susceptible to only one interpretation," making their meaning
self-evident. See In re Passaic Cnty. Utils. Auth., 164 N.J.
270, 299 (2000). Because the officer's conflicting
interpretation, that Title 39 required defendant's car to have
three operating brake lights, is not a plausible one, we cannot
say his mistake on that score was reasonable. See State v.
Scriven, 226 N.J. 20, 36-38 (2016) (finding car stop invalid
based on officer's objectively unreasonable mistake of law
regarding the high beam statute).
After the briefing in this matter was complete, the State
brought to our attention, pursuant to Rule 2:6-11(d), our
decision in State v. Sutherland, 445 N.J. Super. 358 (App.
Div.), appeal granted, 228 N.J. 246 (2016), addressing the
validity of a car stop based on a broken tail light. Although
noting that N.J.S.A. 39:3-61(a) and 39:3-66 provide "that two
tail lamps are required and they must be kept in good working
order," we nevertheless upheld a stop "because one of [the
car's] four tail lights was not illuminated," and questioned the
11 A-5318-14T1
continuing vitality of Puzio in light of Heien. Sutherland,
supra, 445 N.J. Super. at 364-68.
Although Sutherland addressed tail lamps and not brake
lights, we do not subscribe to its view that N.J.S.A. 39:3-61(a)
and 39:3-66 are rendered ambiguous by N.J.S.A. 39:3-61(l)
(permitting a motorist to avoid violation by repairing a broken
lamp before moving the car) and N.J.S.A. 39:3-48(b) and (d)
(addressing visibility of car lights and lamps). 445 N.J.
Super. at 368-69. More important, two months after Sutherland
was decided, the Supreme Court affirmed the continued vitality
of Puzio in Scriven. Scriven, supra, 226 N.J. at 36.3
We follow Scriven, in holding that an officer's mistaken
interpretation of a clear and unambiguous statute, here, the
former version of N.J.S.A. 39:3-61(a), and N.J.S.A. 39:3-66,
cannot provide the officer with a reasonable and articulable
suspicion that the driver has violated the law. Like the Court
in Scriven, our conclusion, that the officer's mistake of law
was not objectively reasonable, relieves us of the need to
consider whether an objectively reasonable mistake of law
provides reasonable suspicion for a car stop under Article I,
3
The Court subsequently granted leave to appeal in Sutherland,
and the matter remains pending.
12 A-5318-14T1
Paragraph 7 of the New Jersey Constitution, as it does under the
Fourth Amendment. See 226 N.J. at 36-37.
The State's alternative arguments, that the stop could be
justified under the community caretaking exception or based on
the object hanging from defendant's rearview mirror, require
only brief comment.
As the Court reiterated in Scriven, the community
caretaking doctrine "represents a narrow exception to the
warrant requirement," permitting a police officer having an
objectively reasonable basis for believing a driver "impaired or
suffering a medical emergency [to] stop the vehicle for the
purpose of making a welfare check and rendering aid, if
necessary." Id. at 38-39. The exception grew out of the United
States Supreme Court's observation that local police officers
frequently investigate car accidents "and engage in what, for
want of a better term, may be described as community caretaking
functions, totally divorced from the detection, investigation,
or acquisition of evidence relating to the violation of a
criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441, 93
S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 714-15 (1973).
The testimony of the officer here made clear he stopped
defendant for the purpose of enforcing the motor vehicle laws,
not to render emergency aid. Nothing in the record supports
13 A-5318-14T1
that defendant was driving in a manner suggesting he was
impaired. And although the inoperability of a redundant, third
brake light, might perhaps suggest some "problem" with
defendant's car, it could not realistically present the threat
to public safety required for application of the community
caretaking exception to the warrant requirement. See Scriven,
supra, 226 N.J. at 38-40; see also State v. Robinson, ___ N.J.
___, ___ (2017) (slip op. at 35) (rejecting application of the
doctrine in context of a car search when "no potential threat to
any person's safety").
As for the object hanging from defendant's mirror, N.J.S.A.
39:3-74 provides, in pertinent part, that "[n]o person shall
drive any vehicle so constructed, equipped or loaded as to
unduly interfere with the driver's vision to the front and to
the sides." We held in State v. Barrow, 408 N.J. Super. 509,
523 (App. Div.), certif. denied, 200 N.J. 547 (2009), that the
statute required the officer conducting the stop "to provide
articulable facts showing that he or she reasonably believed
that an object hanging from a rearview mirror obstructed the
driver's view."
Here, the officer never testified that the object he saw
obstructed defendant's view in any manner. The officer told the
court he believed the object was a Christmas tree air freshener.
14 A-5318-14T1
Defendant claimed it was his grandmother's handicap parking
placard. The judge did not resolve the discrepancy, being
satisfied there was "apparently something hanging, from all
accounts, from the rearview mirror."
But as it is hardly self-evident that either a single
Christmas tree air freshener or a handicap parking placard would
"unduly interfere with the driver's vision to the front and to
the sides," we think it evident the State failed to carry its
burden on this point. See id. at 517-19. Accordingly, we
conclude the State failed to establish the officer had a
reasonable and articulable suspicion that defendant had violated
N.J.S.A. 39:3-74 so as to justify the stop.
Because the State could not demonstrate the officer had a
reasonable and articulable suspicion for stopping defendant, we
reverse the denial of his motion to suppress the drugs found in
his car as the fruits of the constitutional violation.
Reversed, and remanded for further proceedings not
inconsistent with this opinion. We do not retain jurisdiction.
15 A-5318-14T1