                NOT FOR PUBLICATION WITHOUT THE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,
                                     APPROVED FOR PUBLICATION
         Plaintiff-Appellant,
                                            May 21, 2014
    v.                                  APPELLATE DIVISION

WILLIAM L. WITT,

          Defendant-Respondent.
_________________________________________________________

         Argued May 6, 2014 – Decided May     21, 2014

         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
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 Pena-

Flores, 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.




                                            2                                 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


1
 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).



                                         3                                     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. PENA-
               FLORES, SHOULD BE REPLACED BECAUSE IT HAS
               PROVED TO BE UNWORKABLE AND HAS LED TO
               UNINTENDED NEGATIVE CONSEQUENCES.




2
 Because 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.
3
    We have deleted the subparts of this point for brevity's sake.



                                           4                                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 case-

by-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




                                     5                                 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

4
 We 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.



                                        6                              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




                                       7                                   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

5
 There 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.



                                           8                                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 twenty-
              five 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



                                                  9                                     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

6
 We 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).
7
 This 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.



                                    10                                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.




8
 We 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 well-
established constitutional principles.



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