STATE OF NEW JERSEY VS. MARK HUERTAS(6087, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-4543-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK HUERTAS,

Defendant-Appellant.

_______________________________________________________________

Submitted September 26, 2017 – Decided November 14, 2017

Before Judges Fasciale, Sumners and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Municipal Appeal
No. 6087.

Richard P. Blender, attorney for appellant.

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Tom Dominic Osadnik,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Defendant appeals from his de novo conviction for driving

while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant moved to

suppress evidence, contending police lacked a reasonable and
articulable suspicion to stop his motor vehicle. His motion was

denied in municipal court, and he pleaded guilty to DWI. On

appeal, the Law Division judge upheld the denial of the motion and

imposed the same sentence defendant received in municipal court.

Defendant's sole argument on appeal is:

AN ANONYMOUS CALL TO THE POLICE THAT THERE
"MIGHT BE A DRUNK DRIVER" [WAS] NOT SUFFICIENT
TO ESTABLISH A REASONABLE ARTICULABLE
SUSPICION OF CRIMINAL ACTIVITY SUFFICIENT TO
JUSTIFY A [STOP] OF A MOTOR VEHICLE.

We conclude the stop of defendant's vehicle was justified because

the information received from the caller and the sergeant's

observations prior to effecting the stop provided a reasonable,

articulable suspicion that the operator of the vehicle was

intoxicated. We therefore affirm.

In reviewing an order denying a motion to suppress, we "uphold

the factual findings underlying [a judge'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). We only

reverse if the decision was "so clearly mistaken that the interests

of justice demand intervention and correction." Id. at 425

(quoting State v. Elders, 192 N.J. 224 (2007)). The "[judge's]

interpretation of the law, however, and the consequences that flow

from established facts are not entitled to any special

deference[,]" and are therefore "reviewed de novo." Ibid.

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 The Law Division judge found Wanaque Borough police Sergeant

Spillane, who performed the challenged motor vehicle stop,

received a radio transmission that an off-duty officer from another

municipality observed a vehicle being operated by a driver who was

possibly intoxicated. The broadcast to Spillane also gave a

description of the vehicle and its New Jersey license plate

information. The judge also found that the off-duty officer

informed the dispatcher that the operator's "driving [was]

erratic" and that the driver "fail[ed] to maintain a lane."

The judge credited evidence that Spillane, prior to effecting

the motor vehicle stop, "observed defendant's vehicle [for twenty

to twenty-five seconds and saw it] go over towards the left portion

of the lane and touch[] a double yellow line with the left driver's

side and rear tires." The judge viewed a mobile video recorder

(MVR) video that confirmed defendant's front and rear tires were

on the yellow line for approximately four seconds. As the officer

pulled the car over, it "appeared to run over the left curb" as

it turned into the QuickChek parking lot, but that observation was

made after he activated his overhead lights.

It is axiomatic that "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. Golotta, 178 N.J. 205, 212-13, (2003) (quoting State v.

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Locurto, 157 N.J. 463, 470 (1999)). The reasonable suspicion

needed to initiate an investigative stop requires less than the

quantum of proof necessary to establish probable cause. Id. at

213. The State must "demonstrate by a preponderance of the

evidence that it possessed sufficient information to give rise to

the required level of suspicion." State v. Amelio, 197 N.J. 207,

211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L.

Ed. 2d 1297 (2009).

Police officers are permitted to stop an automobile on the

basis of a 9-1-1 call alleging intoxicated driving as long as the

9-1-1 caller "convey[s] an unmistakable sense that the caller has

witnessed an ongoing offense that implicates a risk of imminent

death or serious injury to a particular person such as a vehicle's

driver or to the public at large." Golotta, supra, 178 N.J. at

221-22. The call must be made "close in time to his first-hand

observations." Id. at 222. Finally, the caller must "provide a

sufficient quantity of information, such as an adequate

description of the vehicle, its location and bearing, or 'similar

innocent details, so that the officer, and the court, may be

certain that the vehicle stopped is the same as the one identified

by the caller.'" Ibid. (quoting United States v. Wheat, 278 F.3d

722, 731 (8th Cir. 2001), cert. denied, 537 U.S. 850, 123 S. Ct.

194, 154 L. Ed. 2d 81 (2002)).

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 The call from the off-duty officer informed that he had

directly observed the operation of a vehicle by a driver he

believed to be intoxicated. The off-duty officer told the

dispatcher the driver was operating erratically and failed to

maintain the lane of travel. Observation of such operation is

sufficient to justify a DWI stop. Golotta, supra, 178 N.J. at

209. Although the manner of operation reported by the off-duty

officer to the dispatcher was not conveyed to Spillane, those

facts, contrary to defendant's argument on appeal, can be used to

establish the State's burden:

It is understood "that effective law
enforcement cannot be conducted unless police
officers can act on directions and information
transmitted by one officer to another and that
officers, who must often act swiftly, cannot
be expected to cross-examine their fellow
officers about the foundation for the
transmitted information." United States v.
Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976);
see also United States v. Hensley, 469 U.S.
221, 230-31, 105 S. Ct. 675, 681, 83 L. Ed.
2d 604, 613 (1985) (explaining that
information possessed by dispatcher was
imputed to responding police officers, and
that dispatcher's knowledge, not responding
officers', was essential for determining
probable cause); Whiteley v. Warden of Wyo.
State Penitentiary, 401 U.S. 560, 568, 91 S.
Ct. 1031, 1037, 28 L. Ed. 2d 306, 313 (1971)
(holding that police who arrested and searched
defendant were entitled to rely and act on
radio bulletin and stating that "police
officers called upon to aid other officers in
executing arrest warrants are entitled to
assume that the officers requesting aid

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 offered the magistrate the information
requisite to support an independent judicial
assessment of probable cause").

[State v. Crawley, 187 N.J. 440, 457 (2006);
see also State in the Interest of H.B. 75 N.J.
243, 265 (1977) (Handler, J., dissenting)
(stating, "police action must be assessed for
reasonableness in constitutional terms by
reference to the sum total of the information
and knowledge available to the police
collectively and not by the isolated or
selective consideration of only a part of the
total composite").]

The reliability of the information provided by the off-duty officer

is presumed. United States v. Ventresca, 380 U.S. 102, 111, 85

S. Ct. 741, 747, 13 L.Ed. 2d 684, 691 (1965).

Moreover, the information provided to Spillane, together with

his observations, justified the stop. Spillane promptly located

the vehicle that matched the information provided by the off-duty

officer. Spillane's observation of defendant's vehicle

buttressed the suspicion that the operator was intoxicated.

Defendant did not maintain his vehicle within the marked travel

lane as required by N.J.S.A. 39:4-88(b), as confirmed by the MVR.

The information provided by the off-duty officer, together

with Spillane's own observations, satisfied the reasonable and

articulable suspicion standard. An urgency arose from the

recognized fact that intoxicated or erratic drivers pose a

significant risk of death or injury to themselves and to the

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public. See Golotta, supra, 178 N.J. at 218. The stop was

justified.

Affirmed.

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