NOT FOR PUBLICATION WITHOUT THE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-1699-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RYAN M. MCMENAMIN,
Defendant-Appellant.
_______________________
Submitted April 27, 2021 – Decided May 28, 2021
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 18-10-
1339.
Mario J. Persiano, attorney for appellant.
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Alexis R. Agre, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Ryan M. McMenamin pled guilty to fourth-degree driving
while his license was suspended for a third conviction of driving while
intoxicated, N.J.S.A. 2C:40-26(b). He appeals, arguing that his violation came
to light when his motor vehicle was stopped at an unconstitutional checkpoint.
We reject that argument and affirm the denial of his motion to suppress and his
conviction.
I.
On May 6, 2018, defendant was driving a motor vehicle in Burlington
Township. He was stopped by Officer James Conway and given four
summonses for motor vehicle violations: tinted windows, N.J.S.A. 39:3-75;
driving without a license, N.J.S.A. 39:3-10; driving with a suspended license,
N.J.S.A. 39:3-40; and driving without insurance, N.J.S.A. 39:6B-2. A check of
defendant's record revealed that he had been driving after his license was
suspended for a third conviction of driving while intoxicated (DWI), N.J.S.A.
39:4-50. Consequently, in October 2018, defendant was indicted for fourth-
degree driving with a suspended license, while the license had been suspended
for a second or subsequent conviction of DWI.
Defendant filed a motion to suppress the evidence obtained from the stop,
arguing that his motor vehicle had been stopped at an unconstitutional
checkpoint. While that motion was pending, defendant pled guilty to the
indicted crime, preserving his right to withdraw his plea and proceed to trial if
2 A-1699-19
his motion to suppress was denied. The plea form also stated that defendant
preserved his right to appeal the denial of his motion to suppress.
On August 15, 2019, the trial court conducted an evidentiary hearing at
which one witness testified: Officer Conway. Conway explained that on May
6, 2018, he was working a patrol shift from 1 p.m. to 1 a.m. Shortly after starting
his shift, Conway joined several other police officers who were conducting a
"traffic detail" near Sunset Road. Conway recalled that when he arrived there
were three other officers already at the detail, including a sergeant. The officers
all parked their police vehicles in a bank parking lot just off Sunset Road.
Describing the traffic detail, Conway testified that some officers would
stand by the roadway to look for violations, such as drivers not wearing
seatbelts, tinted windows, cracked windshields, and expired inspection stickers.
If a violation was observed and the vehicle was turning onto an access road to a
nearby shopping plaza, an officer would signal the driver to pull into the bank
parking lot. An officer would then speak with the driver and issue a ticket if a
violation was confirmed. Conway also testified that if no violation was observed
or the vehicle was not turning onto the access road, the car would not be stopped.
Regarding the stop of defendant's car, Conway explained that he was
standing by the side of the road and had positioned himself in a place where he
3 A-1699-19
could see vehicles approaching his location, but the drivers would not be able to
see him "until it's too late." He saw defendant's car turn onto the access road
and he observed that the car had tinted windows. Accordingly, Conway directed
defendant to stop his vehicle in the bank parking lot. Conway then approached
the vehicle and asked defendant for "his credentials." Defendant did not have a
license or an insurance card. Accordingly, Conway issued four motor vehicle
summonses to defendant for driving without a license, driving with a suspended
license, driving with no insurance, and driving in a vehicle with illegally tinted
windows.
During cross-examination, Conway testified he had previously
participated in two DWI checkpoints. He explained that DWI checkpoints were
very detailed operations where cars were stopped according to established
procedures to check for intoxicated drivers. Conway explained that the traffic
detail on May 6, 2018 was not a checkpoint.
At the end of the evidentiary hearing, counsel for defendant argued that
defendant had been stopped at an unconstitutional checkpoint and therefore all
evidence of him driving without a license should be suppressed. In making that
argument, defense counsel relied on our decision in State v. Kirk, 202 N.J.
Super. 28, 56-58 (App. Div. 1985), where we detailed the procedures necessary
4 A-1699-19
for a checkpoint to comply with the Fourth Amendment and Article I, Paragraph
7 of the New Jersey Constitution.
The trial court rejected defendant's arguments. The court found Conway
to be credible. Based on Conway's testimony, the trial court found that
defendant's motor vehicle was only stopped after Conway observed the tinted
windows. Accordingly, the trial court reasoned that the traffic detail on May 6,
2018 was not an unconstitutional checkpoint. Instead, the court found that
Conway had lawfully observed the tinted window violation from the roadway
and then stopped the vehicle based on a reasonable articulable suspicion of a
motor vehicle violation. In making that finding, the trial court relied on our
decision in State v. Foley, 218 N.J. Super. 210, 213-14 (App. Div. 1987), where
we held that a police officer can set up roadside observation points and stop
vehicles when a violation is observed without violating the Federal or our State
Constitutions.
II.
On appeal, defendant argues:
POINT I: THE TRIAL COURT'S LEGAL FINDINGS
ON THE CONSTITUTIONALITY OF
DEFENDANT'S STOP ARE SUBJECT TO PLENARY
REVIEW[.]
5 A-1699-19
POINT II: THE POLICE DETAIL WAS
UNCONSTITUTIONAL UNDER ART I, PAR. 7 OF
THE NEW JERSEY CONSTITUTION.
SUBPOINT A: THE STANDARDS OUTLINED IN
STATE V. KIRK ARE APPLICABLE, IN PART, TO
ASSESS THE CONSTITUTIONALITY OF THE
BURLINGTON TOWNSHIP POLICE DETAIL.
SUBPOINT B: THE LACK OF CONTROLS OVER
POLICE CONDUCT AND DISCRETION MADE IT
POSSIBLE FOR MOTORISTS TO BE SEIZED
WITHOUT PROBABLE CAUSE OR REASONABLE
SUSPICION[.]
POINT III: THE COURT'S HOLDING IN STATE V.
FOLEY IS NOT APPLICABLE TO DEFENDANT'S
STOP[.]
Our review is limited when a motion to suppress is denied following an
evidentiary hearing. State v. Robinson, 200 N.J. 1, 15 (2009). We defer to the
factual and credibility findings made by the trial court "so long as those findings
are supported by sufficient credible evidence in the record." State v. Handy,
206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). The
legal conclusions of a trial court are reviewed de novo. State v. Hubbard, 222
N.J. 249, 263 (2015) (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
The Fourth Amendment prohibits "unreasonable searches and seizures."
U.S. Const. amend. IV; see also N.J. Const. art. I, ¶ 7. A motor vehicle can be
lawfully stopped without a warrant if a police officer has "a reasonable and
6 A-1699-19
articulable suspicion that the driver of a vehicle, or its occupants, is committing
a motor-vehicle violation or a criminal or disorderly persons offense." State v.
Scriven, 226 N.J. 20, 33-34 (2016) (citing State v. Locurto, 157 N.J. 463, 470
(1999)). "An investigative detention that is premised on less than reasonable
and articulable suspicion is an 'unlawful seizure,' and evidence discovered
during the course of an unconstitutional detention is subject to the exclusionary
rule." Elders, 192 N.J. at 247 (citing State v. Rodriguez, 172 N.J. 117, 132-33
(2002)).
Police can set up a checkpoint on a roadway to stop and detain motorists
without individualized suspicion, but such checkpoints must be executed in
strict adherence to well-established procedural safeguards. Kirk, 202 N.J.
Super. at 40-41. "In order to pass muster under our [S]tate [C]onstitution, a
roadblock or checkpoint must be established for a specific need and to achieve
a particular purpose at a specific place." State v. Carty, 170 N.J. 632, 652 (2002)
(citing Kirk, 202 N.J. Super. at 37).
By contrast to a checkpoint, "[a] simple observation into the interior of an
automobile by a police officer located outside the automobile is not a 'search'
within the meaning of the Fourth Amendment." Foley, 218 N.J. Super. at 215
(citing Texas v. Brown, 460 U.S. 730, 739-40 (1983)). Accordingly, a police
7 A-1699-19
officer can view motorists and motor vehicles from a roadside observation point
and, if violations are seen, stop the motor vehicle. Id. at 216.
The central issue on this appeal is whether defendant's motor vehicle was
stopped at a checkpoint that lacked adequate procedures or whether it was
stopped after Conway observed that the motor vehicle had tinted windows. The
trial court's finding that the stop was not part of a checkpoint is supported by
substantial credible evidence and well-established law. Moreover, the trial
court's finding that Conway had a reasonable articulable suspicion to stop
defendant's car based on observations he made from the roadway is also
supported by substantial credible evidence and well-established law.
In short, Conway did not randomly stop defendant's car without a
reasonable articulable suspicion. Instead, Conway positioned himself alongside
a road so that he could make observations of vehicles as they approached him.
The trial court found Conway's testimony to be credible and that Conway saw
the tinted window violation before directing defendant to stop his vehicle.
Accordingly, we agree with the trial court that the procedures in this case were
like the procedures that we approved in Foley, 218 N.J. Super. at 215. Thus,
there was not a checkpoint requiring specialized procedures as discussed in Kirk,
202 N.J. Super. at 40-41. Accordingly, we reject defendant's arguments.
8 A-1699-19
Affirmed.
9 A-1699-19
STATE OF NEW JERSEY VS. RYAN M. MCMENAMIN (18-10-1339, BURLINGTON COUNTY AND STATEWIDE)
Combined Opinion