NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0866-13T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM L. WITT,

Defendant-Respondent.

_________________________________________________________

Argued May 6, 2014 – Decided

Before Judges Fisher, Koblitz and O'Connor.

On appeal of an interlocutory order of the 

Superior Court of New Jersey, Law Division, 

Salem County, Indictment No. 13-04-0215.

Ronald Susswein, Assistant Attorney General, 

argued the cause for appellant (John J. 

Hoffman, Acting Attorney General, attorney; 

Mr. Susswein, of counsel and on the brief).

Stephen W. Kirsch, Assistant Deputy Public 

Defender, argued the cause for respondent

(Joseph E. Krakora, Public Defender, 

attorney; Mr. Kirsch, of counsel and on the 

brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

By way of this appeal of an interlocutory order, which 

granted defendant's motion to suppress evidence seized during a 

warrantless search of his motor vehicle, the Attorney General

May 21, 2014

APPROVED FOR PUBLICATION

May 21, 2014

APPELLATE DIVISION
2 A-0866-13T2

seeks to have "overturn[ed] the rule of law announced in State 

v. Pena-Flores, 198 N.J. 6 (2009)." The Attorney General, 

however, candidly acknowledges what is undeniably true – this 

court "does not have the authority to overturn" Pena-Flores. 

Consequently, the Attorney General seems to simply seek our 

predictable disposition on the merits so he may take his fight 

to the Supreme Court. We granted leave to appeal not because we 

believed there is merit in this appeal but because it is our 

general practice to grant the State's motions for leave to 

appeal the suppression of evidence. See State v. Reldan, 100 

N.J. 187, 204-05 (1985); State v. Ruffin, 371 N.J. Super. 371, 

389 (App. Div. 2004); State v. Alfano, 305 N.J. Super. 178, 190 

(App. Div. 1997). We now affirm because we are bound by PenaFlores, because of the utter absence of any exigency to support 

the warrantless vehicle search that occurred, and because there 

was no justification for this motor vehicle stop.

Following defendant's arrest at a motor vehicle stop, which 

we will describe momentarily, a warrantless search led to the 

discovery and seizure of a handgun from the center console of 

defendant's vehicle. After being indicted and charged with 

unlawful possession of a firearm, N.J.S.A. 2C:39-5(b), and 

unlawful possession of a firearm by a convicted felon, N.J.S.A.
3 A-0866-13T2

2C:39-7(b), defendant moved for the suppression of the evidence 

seized during the warrantless vehicle search.

The suppression hearing was stunningly brief. Only the 

arresting officer testified, and his testimony consumes a mere 

eight transcript pages. During the course of that testimony the 

prosecutor made little attempt to elicit evidence – to the 

extent any existed – of exigent circumstances necessitating the 

warrantless search.

The arresting officer testified that he was on patrol on 

December 19, 2012. He had just concluded his involvement with 

another motor vehicle stop when, at approximately 2:00 a.m., a

vehicle drove by with his "high beams on" that the driver 

"failed to dim" as he drove by. The officer pursued and stopped 

defendant's vehicle on Route 48 in Carneys Point. As he 

questioned defendant, the officer formed the conclusion that 

defendant was intoxicated.

Defendant's credentials were readily provided. Defendant 

also complied with the officer's request that he step out of the 

vehicle and engage in a field sobriety test, which the officer 

believed defendant failed. The officer arrested defendant, read 

him his Miranda1 rights, and handcuffed and seated defendant in 

 

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966).
4 A-0866-13T2

the back of the officer's patrol vehicle. The officer had 

called for back-up during the field sobriety test, and another 

police vehicle had promptly arrived. The officer also testified 

there were no other occupants in defendant's vehicle and there 

was "[n]ot a lot of traffic out there" at that early morning 

hour.

After hearing argument on the significance of this 

testimony, Judge Timothy G. Farrell granted defendant's motion 

to suppress. The State then moved for leave to appeal, which we 

granted.

In appealing what it believes to be the appropriate case 

for its quixotic attempt to obtain a change in the currently 

applicable legal principles,

2 the State argues in a single 

point:

3

THE CURRENT EXIGENT-CIRCUMSTANCES TEST UNDER 

NEW JERSEY'S INTERPRETATION OF THE 

AUTOMOBILE EXCEPTION TO THE WARRANT 

REQUIREMENT, AS EXPLAINED IN STATE V. PENAFLORES, SHOULD BE REPLACED BECAUSE IT HAS 

PROVED TO BE UNWORKABLE AND HAS LED TO 

UNINTENDED NEGATIVE CONSEQUENCES.

 

2Because the Pena-Flores majority observed that it was merely 

reaffirming "over three decades of jurisprudence," id. at 29 

n.6, we assume the Attorney General will also be seeking the 

Supreme Court's overruling of numerous other precedents.

3We have deleted the subparts of this point for brevity's sake.
5 A-0866-13T2

Because this court has no authority to "replace" Pena-Flores

with some other legal principles – only our Supreme Court may do 

that, Franco v. Davis, 51 N.J. 237, 238 (1968) – we find the 

Attorney General's arguments unworthy of our further discussion 

in a written opinion. R. 2:11-3(e)(2). Notwithstanding, and 

for the sake of completeness, we add the following brief 

comments regarding this particular case, the application of the 

automobile exception to the warrant requirement, and the faulty 

basis for this particular motor vehicle stop.

In reviewing its long line of decisions over many decades 

regarding automobile searches, the Supreme Court in Pena-Flores

reiterated that a warrantless search of an automobile in New 

Jersey is permissible "where (1) the stop is unexpected; (2) the 

police have probable cause to believe that the vehicle contains 

contraband or evidence of a crime; and (3) exigent circumstances 

exist under which it is impracticable to obtain a warrant." 198 

N.J. at 28 (citing State v. Cooke, 163 N.J. 657, 667-68 (2000) 

and State v. Alston, 88 N.J. 211, 230-34 (1981)). The Court 

further repeated that "[e]xigency must be determined on a caseby-case basis," 198 N.J. at 28 (citing State v. Dunlap, 185 N.J.

523, 551 (2006)), based on "the totality of the circumstances," 

ibid. (citing Cooke, 163 N.J. at 675). And the Court observed 

that the "[l]egitimate considerations" in examining such a 
6 A-0866-13T2

search "are as varied as the possible scenarios surrounding an 

automobile stop," including:

the time of day; the location of the stop; 

the nature of the neighborhood; the 

unfolding of the events establishing 

probable cause; the ratio of officers to 

suspects; the existence of confederates who 

know the location of the car and could 

remove it or its contents; whether the 

arrest was observed by passersby who could 

tamper with the car or its contents; whether 

it would be safe to leave the car unguarded 

and, if not, whether the delay that would be 

caused by obtaining a warrant would place 

the officers or the evidence at risk.

[Id. at 29.]

None of the circumstances presented here suggested anything 

close to an exigency that would permit a motor vehicle search 

without a warrant. This was an early morning stop on a deserted 

highway. Defendant was alone. We assume defendant had no 

confederates hiding in the brush alongside the roadway. 

Defendant had been handcuffed and was seated in the back of a 

police vehicle. There is no reason to believe that evidence the 

officer may have been looking for – he testified he was 

searching for open containers of alcohol4 – would not still be 

there once a warrant was obtained. And the officer was not 

 

4We assume – although we concede the record does not address the 

point – that any alcohol in a container in the vehicle would not 

change its chemical composition during the time it would take 

for the officer to apply for and obtain a search warrant, 

whether by telephone or otherwise.
7 A-0866-13T2

"outnumbered." When the prosecutor argued the existence of "a 

manpower issue," Judge Farrell correctly pointed out the lack of 

evidence to support that contention.

Although the lack of exigencies alone would suffice in 

affirming the order under review, defendant additionally argues 

that not only was the seizure inappropriate but the stop of the 

vehicle was infirm as well. Here, the reason given for the stop 

was the fact that defendant drove by the officer, during the 

officer's participation in another motor vehicle stop, without 

dimming his high beams. The factual record on this point is 

scant and, indeed, the State made little effort to demonstrate 

the vehicle stop was proper, focusing only on the propriety of 

the seizure of evidence that followed. Nevertheless, we discern 

from the record that the officer who decided to make the stop 

was not operating his own vehicle when defendant drove by. And, 

although the record does not identify the side of the roadway 

where the officer's other motor vehicle stop occurred when 

defendant drove by, we have no cause at present to question the 

Attorney General's representation at oral argument that the 

officer was on the opposite side of the road from defendant's 

vehicle. Consequently the police officer's vehicle cannot 
8 A-0866-13T2

possibly fit the definition of "an oncoming vehicle" contained 

in N.J.S.A. 39:3-60.5

It has been established 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. Locurto, 157 N.J. 463, 470 (1999)

(internal quotation marks and citations omitted); see also

Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 

L. Ed. 2d 660, 673 (1979). Here, the State argues that this 

standard was met because defendant was driving with his high 

beams on. That fact alone is insufficient. The applicable 

statute that the officer presumably believed had been violated 

does not preclude all uses of a vehicle's high beams. To the 

contrary, the statute states:

Every person driving a motor vehicle 

equipped with multiple-beam road lighting 

equipment, during the times when lighted 

lamps are required, shall use a distribution 

of light, or composite beam, directed high 

enough and of sufficient intensity to reveal 

persons and vehicles at a safe distance in 

advance of the vehicle, subject to the 

following requirements and limitations: 

whenever the driver of a vehicle approaches 

an oncoming vehicle within five hundred 

feet, such driver shall use a distribution 

 

5There was no evidence that there was some other "oncoming 

vehicle" on the roadway when the officer decided to stop 

defendant's vehicle because of a perceived violation of N.J.S.A.

39:3-60.
9 A-0866-13T2

of light or composite beam so aimed that the 

glaring rays are not projected into the eyes 

of the oncoming driver, and in no case shall 

the high-intensity portion which is 

projected to the left of the prolongation of 

the extreme left side of the vehicle be 

aimed higher than the center of the lamp 

from which it comes at a distance of twentyfive feet ahead, and in no case higher than 

a level of forty-two inches above the level 

upon which the vehicle standards at a 

distance of seventy-five feet ahead.

[N.J.S.A. 39:3-60 (emphasis added).]

The right to stop a motor vehicle requires evidence that the 

officer had a reasonable and articulable suspicion of a 

violation of the statute. This standard does not require that 

the officer possessed evidence of a violation beyond a 

reasonable doubt, only that the officer had an objectively 

reasonable belief that a motor vehicle violation had occurred. 

State v. Williamson, 138 N.J. 302, 305-06 (1994); State v. 

Puzio, 379 N.J. Super. 378, 382-84 (App. Div. 2005). That 

standard was not met here.

As worded, N.J.S.A. 39:3-60 presupposes that the offending 

driver's high beams are on when his vehicle "approaches an 

oncoming vehicle." Because, as noted, it has not been argued 

there was some other "oncoming vehicle" on the roadway at the 

time, we assume the officer's reason for stopping defendant's 

vehicle was based on the officer's belief that the officer's 

vehicle was the "oncoming vehicle" confronted by defendant's 
10 A-0866-13T2

undimmed high beams. The plain language of the statute, 

however, requires that the other vehicle be in operation and in 

the lane of traffic opposite to the alleged offender;

6 the object 

of the statute is to avoid the operation of the high beams of 

one vehicle causing difficulties for the driver of another 

vehicle approaching in an opposite direction.7 Accordingly, it 

was not objectively reasonable for the officer to believe that 

defendant was in violation of N.J.S.A. 39:3-60 when he drove by, 

with his high beams on, the police officer's stationary and 

unoperated vehicle on the opposite side of the roadway; it is 

not reasonable for the Attorney General to assert or argue that 

 

6We need not decide whether a driver is required to dim his high 

beams when approaching a vehicle – traveling in the same 

direction – from behind, although the Legislature's use of the 

word "oncoming" would suggest such a circumstance would not be 

violative of N.J.S.A. 39:3-60. Cf., Maini v. Hassler, 38 N.J. 

Super. 81, 84 (App. Div. 1955) (finding that part of the statute 

that requires the dimming of high beams for oncoming vehicles 

within 500 feet irrelevant where defendant's vehicle struck 

plaintiff, who was walking on the roadway in the same 

direction).

7This is not to suggest that the vehicle other than that driven 

by the alleged offender must be in motion. The statute would 

still be offended if, for example, the "oncoming vehicle" was 

stopped at an intersection because of a street light, stop sign 

or otherwise, and the offending driver were to approach within 

500 feet of the intersection with his high beams on. We do not 

see, however, how a parked vehicle could be an "oncoming 

vehicle" because these descriptive words suggest a vehicle in 

operation even though those words do not insist that the 

oncoming vehicle be in motion. Logic suggests that a driver 

need dim his high beams only for a vehicle being operated, 

whether in motion or standing still, in the opposite direction.
11 A-0866-13T2

the police officer's parked and unoperated patrol vehicle was an 

"oncoming vehicle" within the statute's meaning.

There is no merit in the State's appeal.

8

Affirmed.

 

8We also find the argument posed by the Attorney General that the 

officer's "community caretaker function" authorized this motor 

vehicle stop to be without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2). That is, 

only in the Attorney General's view – the officer testified to 

no such thing – defendant's use of his high beams at that time 

was "abnormal" and the officer was authorized to make the stop 

to question or counsel defendant regarding the use of his high 

beams. We do not share the belief that use of the high beams on 

a largely deserted highway in an unpopulated area is "abnormal." 

And such a holding – that what a police officer believes is 

"abnormal" constitutionally authorizes a stop or detention of a 

motorist otherwise operating his vehicle in a proper manner –

would come dangerously close to suggesting that a police officer 

may stop an individual operating a motor vehicle at any time for 

any reason. We find that argument utterly foreign to wellestablished constitutional principles.