                        NOT FOR PUBLICATION WITHOUT THE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
