      
STATE OF NEW JERSEY
Plaintiff-Respondent
APPELLATE DIVISION
Docket No. A-4334-07T4
Criminal Action
On Appeal from a Judgment of Conviction in the Superior Court of New Jersey, Law
Division, Monmouth County v.
BRIAN T. BARROW
Defendant-Appellant
Sat Below:
Hon. Bette E. Uhrmacher, P.J. Cr.
BRIEF AND APPENDIX ON BEHALF OF DEFENDANT-APPELLANT
Yvonne Smith Segars, Esq.
Public Defender
31 Clinton Street
Newark, New Jersey 07101
Joseph Anthony Manzo, Esq.
Designated Counsel
P.O. Box 72
Rockaway, New Jersey
(973) 794-1179
Attorney-at-Law
Of Counsel and
On the Brief
NOT CONFINED
     

PROCEDURAL HISTORY..............................................1
STATEMENT OF SUPPRESSION HEARING FACTS..........................3
PRELIMINARY STATEMENT...........................................8
LEGAL ARGUMENT
POINT I
BECAUSE THE PROVISIONS OF N.J.S.A. § 39:3-74 DO NOT APPLY
TO A PAIR OF MINIATURE BOXING GLOVES THAT ARE HANGING FROM
THE REARVIEW MIRROR, THERE WAS NO OBJECTIVELY REASONABLE
LEGAL BASIS FOR THE POLICE TO STOP MR. ROSATO’S VEHICLE ON
OCTOBER 25, 2005, AND THE EVIDENCE OBTAINED FROM THAT
UNLAWFUL STOP MUST BE SUPPRESSED. ........................10
A.
The otherwise lawful operation of a vehicle with small items hanging from a rearview mirror does not violate the provisions of N.J.S.A. § 39:3-74 that prohibit the operation of a motor vehicle with items upon the front windshield or side windows, and a resulting traffic stop based on this premise is unlawful...........................................14
B.
There is no reasonable articulable basis to believe that the operation of a motor vehicle with small items hanging from a rearview mirror unduly interferes with the driver’s vision, in violation of the third paragraph of N.J.S.A. § 39:3-74, and a resulting traffic stop based on this premise is unlawful...........................................17
CONCLUSION.....................................................28 i

Commonwealth v. Brazeau, 831 N.E. 2d 372 (Mass. App. Div. 2005)
....................................................20,21,22
Delaware v. Prouse, 440 U.S. 648, (1979)....................11,12
Florida v. Jimeno, 500 U.S. 248 (U.S. 1991)....................12
Gordon v. State, 901 So. 2d 399 (Fla. Dist. Ct. App. 2005)..15,16
In re Joseph F., 85 Cal. App. 4th 975 (2000)...................13
People v. Arias, 159 P.3d 134, 138 (2007) ..................18,19
People v. White, 132 Cal. Rptr. 2d 371 (Cal. Ct. App. 2003)
. ..................................................17,19,20
State v. Bruzzese , 94 N.J. 210 (1983)..........................12
State v. Carter , 235 N.J. Super. 232 (App. Div. 1989)..........12
State v. Cohen, 347 N.J. Super. 375 (App. Div. 2002)...........16
State v. Demeter, 124 N.J. 374 (1991)..........................11
State v. Griffin , 84 N.J. Super. 508 (App. Div. 1964)..........12
State v. Harrison, 236 N.J. Super. 69 (Law Div.)...............16
State v. Locurto, 157 N.J. 463 (1999)..........................12
State v. Novembrino, 105 N.J. 95 (1987)........................13
State v. Nugent , 125 N.J. Super. 528 (App. Div. 1973)..........12
State v. Oberlton, 262 N.J. Super. 204 (Law Div. 1992).........16
State v. Perlstein, 206 N.J. Super. 246 (App. Div. 1985).......16 ii

State v. Puzio, 379, N.J. Super. 378 (App. Div. 2005).......12,13
State ex rel. R.M., 343 N.J. Super. 153 (Ch. Div. 2001)........16
State v. Smith, 155 N.J. 83 (1998)..........................11,12
State v. Smith, 306 N.J. Super. 370 (App. Div. 1997)...........12
State v. Valencia, 93 N.J. 126 (1983)..........................11
Terry v. Ohio, 392 U.S. 1 (1968)...............................11
United States v. King, 244 F. 3d 736 (9th Cir. 2001)........13,16
United States v. Lopez-Soto, 205 F.3d 1101 (9th Cir. 2000).....13
United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999)....13
United States v. Mariscal, 285 F.3d 1127(9th Cir. 2002).....12,13
United States v. Miller, 146 F.3d 274(5th Cir. 1998)........12,13
United States v. Owens, 167 F.3d, 739 (1st.Cir. 1999)..........12
United States v. Twilley, 222 F.3d 1092 (9th Cir. 2000)........13
Wong Sun v. United States, 377 U.S. 471 (1963).................11
Whren v. United States, 517 U.S. 806 (1996)....................11
N.J.S.A. § 39:3-74 (2008).......5,8,10,14,15,16,17,18,24,25,26,27 iii

U.S. Const. amend. IV..........................................10
N.J. Const. art. I ¶ 7.........................................10
XIX Oxford English Dictionary 299 (2d ed. 1989)................15
iv

INDICTMENT..................................................Da. 1
JUDGMENT OF CONVICTION......................................Da. 4
PLEA FORM...................................................Da. 6
NOTICE OF APPEAL...........................................Da. 10 v

PROCEDURAL HISTORY
On December 29, 2005, a Monmouth County Grand Jury indicted
Brian T. Barrow (Indictment No. 05-12-2786) and charged him with the following crimes: count one, possession of a controlled dangerous substance (cocaine) in violation of New Jersey
Statutes Annotated (“N.J.S.A.”) § 2C:35-10a (1), a crime of the third degree, and count two, possession of a controlled dangerous substance (methamphetamine) in violation of N.J.S.A. §
2C:35-10a (1), a crime of the third degree.
(Da. 1 to 3).
On January 18, 2007 a hearing was held before The Honorable
Judge Bette E. Uhrmacher, P.J. Cr. on the Defendant’s motion to suppress evidence obtained without a warrant.
1 The motion was denied.
On February 26, 2007 the Defendant plead guilty to counts one and two of the indictment. (Da. 4 to 9).
On January 18, 2008 Judge Uhrmacher sentenced the Defendant to the following term: counts one and two merged, three years
1 1T designates hearing proceedings on January 18, 2007.
2T designates the guilty plea proceedings on February 26, 2007.
3T designates the sentencing proceedings of January 18, 2008.
1

probation. The following fines were also assessed: $50 VCCB,
$75 Safe Neighborhood Fee, $50 lab fee, $1,000 D.E.D.R. penalty, and $30 LEOTF. (Da. 4 to 5).
On May 12, 2008, the Defendant filed a notice of appeal.
(Da. 10).
2

STATEMENT OF SUPPRESSION HEARING FACTS
Ted Wittke testified that he was working as a Hazlet
Township Police patrolman on October 21, 2005 during the 11 p.m. to 8 a.m. shift. He was patrolling the area of Highway 35 and
Holmdel Road. At approximately 12:26 a.m., he observed a motor vehicle that had items hanging from the rearview mirror, which he believed obstructed the view of the driver. Although he was unsure of what the hanging items were at the time, he believed that they were swaying and were not an air freshener. Patrolman
Wittke decided to stop the vehicle and activated his overhead lights. (1T 4:21 to 7:25).
Upon the activation of the police car’s overhead lights, the driver of the vehicle traveled some 200 feet on the shoulder of Highway 35, made a right turn into the entrance of the parking lot of The Office Bar and Grill (located in a shopping center), continued another 50 feet in a travel lane at a slow speed, and made a left turn into The Office’s parking lot, before coming to a stop in a parking space. Patrolman Wittke testified that upon exiting his patrol car, he noticed the passenger Brian T. Barrow leaning forward with his shoulders moving. He suspected that Mr. Barrow was also doing something with his hands. Patrolman Wittke called for backup and approached the car. He also noticed that the previously
3

unidentified items he observed hanging from the rearview mirror were miniature boxing gloves suspended by a thin string. He informed the driver, Jamie Rosato, that he was stopped because of the items hanging from the rearview mirror. The Patrolman stated that he observed the passenger begin to place his hands in his own pocket and ordered Mr. Barrow not to place his hands in his pocket. After back-up officers arrived, Patrolman Wittke demanded that the Defendant exit the vehicle. One of the backup officers was also a “canine officer”, and a sniff test of the vehicle by a police canine dog was conducted. The dog allegedly indicated the presence of narcotics on the passenger’s side door. After a search of the passenger’s seat and console area, no narcotics were found. At this point, Patrolman Wittke told Mr. Barrow that the dog indicated the presence of narcotics. Patrolman Wittke alleged that Mr. Barrow denied using drugs, and said “you can search me officer” while pulling a wallet, currency, and a pack of cigarettes from out of his own pocket. Patrolman Wittke further alleged that Mr. Barrow opened the cigarette packet and said “there is nothing in here.” At this point, Patrolman Wittke asked Mr. Barrow to hand over the cigarettes, which he did. Upon inspection, the cigarette pack contained a glycine plastic bag that allegedly contained a white substance, which the Patrolman believed was cocaine. After
4

placing the Defendant under arrest, a search of the Defendant’s pocket allegedly revealed a glycine bag containing six yellowish pills, which the Defendant allegedly admitted were the drug ecstasy. The driver of the vehicle was issued a summons for violation of N.J.S.A. § 39:3-74 caused by having an obstructed view, due to the items hanging from the rearview mirror. (1T
7:21 to 26:6).
On cross examination, Patrolman Wittke admitted that when he stopped the vehicle, the items hanging from the rearview mirror appeared larger than the standard “Christmas tree” type air freshener. He admitted that he pulled Mr. Rosato over solely based on the objects hanging from the rearview mirror, even though he could not identify the objects at that time and could not describe how large the objects appeared to him at the time. When asked if the objects hanging from the mirror had been a Christmas tree air freshener would he have pulled the vehicle over, Patrolman Wittke said “I don’t think so, unless it was possibly one of the larger Christmas trees.” (1T 38:23 to
41:6).
Q. “Why would you not pull someone over if they had say a four inch air freshener in their car?”
A. “Because I don’t think that would obstruct their view like the items that I saw.” (1T 41:19 to 41:22).
5

When asked for an explanation of how he decides whether to stop a person for an object hanging from the rearview mirror,
Patrolman Wittke said that he considers how far the item hangs down, whether he can see the silhouettes of the items, and whether the items appear to be above the person’s head. He said that if a Christmas tree freshener was hanging down lower he would possibly stop a person for it, but if it was up higher he would not stop them. “It all depends on the placement of the item.” However, he said that a sun visor that was flipped down would not cause him to pull a car over for an obstructed view.
Although he said that the decision to stop is based on the size of the object, he has no parameters for the size of object that is allowable or unallowable and makes his decision on a “case by case basis.” (1T 49:6 to 51:8). When asked if he would stop a person with a parking tag or handicapped tag, Patrolman Wittke said that “I don’t know if I would stop the vehicle or not.”
(1T 51:24 to 52: 52:4).
Carly Miller, an investigator for the New Jersey Public
Defender’s Office testified that the set of miniature boxing gloves measures three and a half inches tall and measures three inches across. They hang from the center of the attached string that also measures three and a half inches long. During her testimony, Ms. Miller produced a standard “Christmas tree” air
6

freshener which measured four and three-quarter inches long and two and three-quarter inches wide. A “Sponge Bob” air freshener measured five inches long and three and three quarter inches wide. A large Christmas tree air freshener measured six and a half inches long and three and three quarter inches wide. (1T
53:5 to 1T 60:11).
7

PRELIMINARY STATEMENT
In this case of first impression, Patrolman Ted Wittke stopped a driver solely for having two miniature boxing gloves hanging from his rearview mirror, which the Patrolman claimed obstructed the driver’s vision and violated N.J.S.A. § 39:3-74.
During the stop, a drug sniffing canine allegedly detected the presence of narcotics in the vehicle. A subsequent field search determined that the passenger, Brian T. Barrow, allegedly possessed cocaine and methamphetamine – both controlled dangerous substances. The Defendant, Mr. Barrow, filed a motion with the lower court to suppress this evidence, claiming that the Patrolman lacked a reasonably objective legal basis to stop the vehicle, because the statute does not prohibit these small items from hanging from a rearview mirror.
The lower court denied the motion, but the lower court erred
– there was no reasonably objective legal basis for the stop.
N.J.S.A. § 39:3-74 only directly prohibits items affixed upon a windshield. Additionally, the third paragraph of the statute only prohibits items that are unduly interfering with the driver’s vision.
Although the New Jersey Courts have yet to interpret the statute, very similar statutes have been interpreted by the
Colorado, Massachusetts, and California courts to require that
8

in order to justify a vehicle stop, the officer be able to testify as to how items were actually affecting the driver’s vision. Additionally, the officer’s understanding of the law must be correct.
In this case, there has been no testimony explaining how the items were actually interfering with the driver’s vision, and the officer is unable to articulate any reasonably objective standards that he uses to determine if hanging objects violate the statute.
When an officer stops a vehicle and that stop is predicated upon an incorrect understanding of the law, the stop lacks probable cause. A stop without probable cause violates the
United States Constitution and New Jersey Constitution, both of which proscribe warrantless searches. By virtue of the exclusionary rule, any evidence obtained based on an illegal search must be suppressed.
Because the court has ample persuasive precedent from other states, and because the facts of this case show that Patrolman
Wittke did not have a objectively reasonably and articulable legal reason for stopping the motor vehicle, the evidence of controlled and dangerous substances, obtained as a result of the stop, must be suppressed.
9

LEGAL ARGUMENT
I.
BECAUSE THE PROVISIONS OF N.J.S.A. § 39:3-74 DO NOT APPLY TO
A PAIR OF MINIATURE BOXING GLOVES THAT ARE HANGING FROM THE
REARVIEW MIRROR, THERE WAS NO OBJECTIVELY REASONABLE LEGAL
BASIS FOR THE POLICE TO STOP MR. ROSATO’S VEHICLE ON OCTOBER
25, 2005, AND THE EVIDENCE OBTAINED FROM THAT UNLAWFUL STOP
MUST BE SUPPRESSED.
The trial court erred when it found that a set of miniature boxing gloves, which measured approximately three and one half inches long and three inches wide, which were hanging from a rearview mirror, provided an objectively reasonable legal basis for a traffic stop under N.J.S.A. § 39:3-74. The otherwise lawful operation of a motor vehicle with these items simply hanging from a rearview mirror did not provide Patrolman Wittke any objectively reasonable basis on which to conclude that there had been a violation of a motor vehicle law and subsequently stop Mr. Rosato’s automobile on the evening of October 25, 2005.
Because subsequent evidence of possession of two controlled dangerous substances was obtained from this illegal stop – in violation of the United States and New Jersey Constitutions – the evidence must be suppressed.
The United States and New Jersey Constitutions guarantee
"the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.
. . ." U.S. Const. amend. IV.; N.J. Const. art. I ¶ 7.
10

Warrantless searches and seizures are, thus, per se illegal, absent circumstances justifying an exception to the warrant requirement. State v. Demeter, 124 N.J. 374, 382 (1991). The
State bears the burden to prove that an exception applies, and a failure to meet that burden requires that all evidence derived from a warrantless search or seizure be suppressed. Wong Sun v.
United States, 377 U.S. 471, 484-88 (1963); State v. Smith, 155
N.J. 83, 100 (1998); State v. Valencia, 93 N.J. 126, 132-33
(1983).
Temporary detention of an individual during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of a person within the meaning of the Fourth Amendment. Delaware v. Prouse, 440
U.S. 648, 653, (1979).
A brief investigatory stop is a recognized exception to the warrant requirement, providing that the police officer is able to point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 20-22
(1968). As a general rule, the decision to stop an automobile is considered reasonable if the officer has “probable cause to believe that a motor vehicle violation has occurred.” Whren v.
United States, 517 U.S. 806, 810 (1996). Alternatively stated,
11

a police officer may stop a motor vehicle where there is a reasonable and articulable suspicion that a motor vehicle violation has occurred. Delaware v. Prouse , 440 U.S. 648, 663,
(1979); State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting
State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997));
State v. Carter , 235 N.J. Super. 232, 237, (App. Div. 1989);
State v. Nugent , 125 N.J. Super. 528, 534, (App. Div. 1973);
State v. Griffin , 84 N.J. Super. 508, 516, (App. Div. 1964).
Reasonableness is the “touchstone of the Fourth Amendment,” and the question of reasonableness is “almost always fact specific.” Florida v. Jimeno, 500 U.S. 248, 250 (U.S. 1991);
United States v. Owens, 167 F.3d, 739, 748 (1st.Cir. 1999);
State v. Bruzzese , 94 N.J. 210, 217, (1983). “Reasonableness is judged through the eyes of a reasonable officer acting ‘in accordance with governing law’.” State v. Puzio, 379, N.J.
Super. 378, 384 (App. Div. 2005).
Additionally, the legal justification for a vehicle stop must be objectively grounded. United States v. Miller, 146 F.3d
274, 279 (5th Cir. 1998). When an officer incorrectly understands a statute and mistakenly believes that the driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable legal basis exists upon which to justify the vehicle stop. United States v. Mariscal,
12

285 F.3d 1127, 1130-33 (9th Cir. 2002); United States v.
Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000); United States v.
Lopez-Soto, 205 F.3d 1101, 1105-06 (9th Cir. 2000); United
States v. Lopez-Valdez, 178 F.3d 282, 288-89 (5th Cir. 1999);
United States v. Miller, 146 F.3d at 279; In re Joseph F., 85
Cal. App. 4th 975, (2000).
The New Jersey Courts have rejected a good faith exception to the Fourth Amendment exclusionary rule. State v. Novembrino,
105 N.J. 95, 157-58 (1987). Although an officer may act with the utmost courtesy and civility toward the driver of a stopped motor vehicle, although that officer’s subjective interpretation of the statute may be reasonable, and although a court may have yet not interpreted the statute that is the basis for the stop, a traffic stop based on an officer’s mistake of law lacks reasonable suspicion. See United States v. King, 244 F. 3d 736,
741-42 (9th Cir. 2001). Simply stated, for whatever reason, when an officer stops a motor vehicle based on an incorrect understanding of the law that he or she is entrusted to enforce and obey, the resulting stop is unconstitutional and unlawful, and all evidence obtained as a result of that stop must be excluded – no matter how it was obtained. See Smith, 155 N.J. at 100; Puzio, 379 N.J. Super. at 384.
13

A.
The otherwise lawful operation of a vehicle with small items hanging from a rearview mirror does not violate the provisions of N.J.S.A. § 39:3-74 that prohibit the operation of a motor vehicle with items upon the front windshield or side windows, and a resulting traffic stop based on this premise is unlawful.
Because the miniature boxing gloves were not attached to the front windshield or front-side windows, they did not violate the provisions of N.J.S.A. § 39:3-74. The first two paragraphs of
N.J.S.A. § 39:3-74 read as follows:
Every motor vehicle having a windshield shall be equipped with at least one device in good working order for cleaning rain, snow, or other moisture from the windshield so as to provide clear vision for the driver, and all such devices shall be so constructed and installed as to be operated or controlled by the driver.
No person shall drive any motor vehicle with any sign, poster, sticker, or other nontransparent material upon the front windshield, wings, deflectors, side shields, corner shields, adjoining windshield, or front side windows of such vehicle other than a certificate or other article required to be so displayed by statute or by regulation of the commissioner.
N.J. Stat. Ann. § 39:3-74 (2008). The first paragraph of the statute addresses the need for windshield cleaning devices and does not apply to items hanging from a rearview mirror.
An analysis of the plain language of the second paragraph of the statute reveals that the prohibition against placing a sign, poster, sticker or other non-transparent material applies to
14

placements upon the windshield or front-side windows. “The word
"upon" is regularly utilized as a simple equivalent of on.”
Gordon v. State, 901 So. 2d 399, 403 (Fla. Dist. Ct. App.
2005)(citing, XIX Oxford English Dictionary 299, 300 (2d ed.
1989)). "Upon" means "[a]bove and in contact with; in an elevated position on; at rest on the upper surface of; on and supported by." Id. “Upon” is also used to denote "contact with or location on a surface, etc., whatever its position." Id. It follows that "upon" does not mean "close to," "in the vicinity of," or "near." Id. Therefore, a plain reading of N.J.S.A. §
39:3-74 indicates that it does not prohibit driving with an object suspended from the vehicle's rearview mirror, because such an object cannot be said to be "upon" the windshield. If the New
Jersey Legislature had wished to prohibit items hanging from the rearview mirror in addition to those upon the front windshield, they could have easily added this language to the original statute or into one of the many revisions of the statute that have occurred over the years. They have not.
Furthermore, there is not a single New Jersey case that interprets this section of the statute to prohibit items hanging from a rearview mirror. Indeed, in each of the five New Jersey published opinions that interpret this statute, the courts have only applied the statue to items in direct contact with a
15

vehicle’s windshield or front-side windows. See State v. Cohen,
347 N.J. Super. 375, 380-81 (App. Div. 2002) (holding tinting placed upon windows which fails to meet the applicable standards on the New Jersey Administrative Code violates N.J.S.A. § 39:3-74 and overruling State ex rel. R.M., 343 N.J. Super. 153 (Ch. Div.
2001) (tinted windows) and State v. Harrison, 236 N.J. Super. 69
(Law Div.)(tinted windows); State v. Perlstein, 206 N.J. Super.
246 (App. Div. 1985)(P.B.A. sticker on windshield); State v.
Oberlton, 262 N.J. Super. 204 (Law Div. 1992) (tinted windows).
In addition, persuasive precedent from other jurisdictions suggests that an item hanging from a rearview mirror does not violate a law prohibiting placement of an object “upon” a windshield. See King, 244 F.3d at 740 (holding an air freshener hanging from a rearview mirror does not violate an ordinance prohibiting placement of objects upon the windshield because "the ordinance's use of 'upon' the front windshield requires placement on or in direct contact with the windshield. An object hanging elsewhere, even if in close proximity, does not trigger a violation of the ordinance."); See also Gordon, 901 So. 2d at 405
(holding two air fresheners hanging from a rearview mirror did not justify a traffic stop for violation of a Florida traffic law that prohibited driving any motor vehicle with any sign, poster, or other nontransparent material upon the front windshield);
16

People v. White, 132 Cal. Rptr. 2d 371, 375-77 (Cal. Ct. App.
2003).
In the present case, there is no dispute that the miniature boxing gloves were hanging from the rearview mirror of Mr.
Rosato’s vehicle and were not upon the front windshield.
Patrolman Wittke testified that he observed a vehicle with “items hanging from the rearview mirror. . . .” 1T 5:19 to 23. In addition, Patrolman Wittke’s own investigative report dated
October 21, 2005 similarly states that he observed items hanging from the rearview mirror of the vehicle. Since the boxing gloves were not attached upon the windshield or front-side windows,
Patrolman Wittke had no objectively reasonable legal basis for stopping an otherwise lawfully operated vehicle based upon a perceived violation of the second paragraph of N.J.S.A. § 39:3-
74. As a result of this illegal stop, the exclusionary rule of the Fourth Amendment requires that the evidence obtained of the controlled dangerous substances be suppressed.
B.
There is no reasonable articulable basis to believe that the operation of a motor vehicle with small items hanging from a rearview mirror unduly interferes with the driver’ s vision, in violation of the third paragraph of N.J.S.A. § 39:3-74, and a resulting traffic stop based on this premise is unlawful.
The third paragraph of N.J.S.A. § 39:3-74 provides that: “No person shall drive any vehicle so constructed, equipped or
17

loaded as to unduly interfere with the driver’s vision to the front and to the sides.” N.J.S.A. § 39:3-74. The plain language of this paragraph indicates that statute pertains to a vehicle that is constructed, loaded or equipped with an offending item or items. The miniature boxing gloves are not part of the construction of the vehicle, nor do they represent the equipment or load of the vehicle. Based on a plain reading of the statutory language alone, there is no reasonable articulable basis to believe that the miniature boxing gloves violate the statute and justify a traffic stop.
Even assuming, arguendo , that the miniature boxing gloves could somehow be considered part of the equipment or load of the vehicle, for there to be a violation of the statue to justify a traffic stop, the items must have been unduly interfering with the operation of the motor vehicle. Although the New Jersey courts have not interpreted this paragraph of the statue, persuasive precedent from several other jurisdictions with similarly worded statutes provides guidance regarding the correct interpretation of the statute.
In Colorado, the comparable statute states: “No vehicle shall be operated upon any highway unless the driver’s vision through any required glass equipment is normal and unobstructed.”
People v. Arias, 159 P.3d 134, 138 (2007) (citing section 42-4-
18

201(4)). In Arias, a police officer stopped a vehicle because it had a tree-shaped air freshener hanging from the rearview mirror. Id. at 136. In ordering the suppression of the evidence collected as the result of the stop, the Colorado
Supreme Court held that there was no reasonable articulable suspicion to stop the vehicle for a violation of the section.
The court said that “observing an air freshener or like item hanging from a rearview mirror is not automatically a basis for a traffic stop.” Id. at 139. The court explained that although the police officer relied on the premise that the air freshener could have obstructed the windshield, no showing was made that the officer believed the item actually obstructed the driver’s vision at the time of the stop. Id. at 137. The court noted that the officer did not testify with any specificity how the air freshener was displayed in the window or how the angle of vision may have been actually obstructed.“ Id. 138.
In California, the statute closely parallels New Jersey’s and states: “No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver’s clear view through the windshield or side windows.”
White, 132 Cal. Rptr. 2d at 374 (citing Vehicle Code 26708, subdivision (a) (2)). In White, a police officer stopped a
19

vehicle because the driver had a tree-shaped air freshener hanging from the rearview mirror. Id. at 373. In ordering the suppression of the evidence collected as the result of the stop, the Court of Appeal of California held that there was not an objectively reasonable basis to stop the vehicle for a violation of the Vehicle Code. Id. at 375-77. The court explained the statute prohibits driving a vehicle with an object displayed that obstructs or reduces the driver’s clear vision through the windshield or side windows, but the statute does not flatly prohibit hanging any object on a rearview mirror.” Id. at 375.
Additionally, the court stated that it is worthy of note that the officer never testified that he believed the air freshener obstructed the driver’s view. . . [and] the officer never testified to other specific and articulable facts, like hesitant or erratic driving, that might suggest the driver’s clear view was impeded.” Id. at 375.
In Massachusetts, the like statue states: “No person, when operating a motor vehicle, shall permit to be on or in the vehicle anything which may interfere with or impede the proper operation of the vehicle or any equipment by which the vehicle is operated or controlled. . . .” Commonwealth v.Brazeau, 831
N.E. 2d 372, 373 (Mass. App. Div. 2005) (citing G.L. c. 90 §
13). In Brazeau, a police officer stopped a vehicle solely
20

because it had three small objects suspended from the rearview mirror, including a diamond shaped glass prism possessing reflective characteristics. Id. In ordering the suppression of the physical evidence and statement obtained as a result of the stop, the Appeals Court of Massachusetts held that there was not a justifiable basis to stop the vehicle for a violation of the statute. Id. at 68. The court stated that “the mere existence of two or three items hanging from a rearview mirror does not suffice, we think, to constitute a violation of [the statute] or warrant police investigation.” Id. at 374. The court further stated that “had the officer, in fact, testified as to his reliance upon objectively verifiable qualities of the hanging items that made them distracting or that interfered with the driver’s view, a different case may have been presented.” Id.
The court noted that there was no testimony that the items were swinging back and forth in front of the driver’s face, or that they were capable of doing so. Id. at 375. Additionally, there was no testimony regarding the plane in which the objects were hanging relative to the driver’s field of vision nor was there testimony that the driver had to peer around the objects. Id.
The officer acknowledged that the vehicle was in its proper lane, and was not swerving or speeding. Id. In short, the officer’s belief that the objects were impeding the driver’s
21

operation of the vehicle had no reasonable, objective support.
Id.
Finally, the court took judicial notice of the fact that
“objects such as air fresheners, graduation tassels, and religious medals commonly are hung from the rearview mirrors of motor vehicles driven in the Commonwealth.” Id. at 375. The court stated “we doubt that the Legislature intended this ordinary practice to be grounds, without more, for issuing a citation or justifying a stop by the police.” Id. at 375.
Similar to the Colorado, California, and Massachusetts cases, the facts in this case evince that Patrolman Wittke did not testify to objective, reasonable and articulable facts that provided a basis to stop Mr. Rosato’s vehicle for a violation of
N.J.S.A. § 39:3-74 on the evening of October 21, 2005. Similar to the statutes interpreted by the California and Massachusetts courts, New Jersey’s statute does not flatly prohibit any object hanging from the rearview mirror – it prohibits only items that unduly interfere with a driver’s vision to the front and side.
Thus, in order for there to be a valid stop, there must be an objectively reasonable basis to conclude that the offending items were interfering with the driver’s vision. In this case, that objectively reasonable standard has not been met.
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Via his testimony and investigative report, Patrolman Wittke described how he noticed the hanging items that he believed obstructed the driver. 1T:5:14 to 5:23. He described in detail that the vehicle made a left turn onto Route 35, and that upon the activation of the police car’s overhead lights, the driver of the vehicle traveled some 200 feet on the shoulder of Highway
35, pulled into the entrance of The Office, continued another 50 feet in a travel lane at a slow speed, and made a left turn before coming to a stop in a parking space. 1T 5:19 to 10:4.
Despite the fact that he was following directly behind the vehicle, Patrolman Wittke could not identify the hanging objects, but upon approaching the vehicle, Patrolman Wittke noticed that the items were miniature boxing gloves. 1T 6:22 to
10:4.
At no point in either his investigative report or testimony does Patrolman Wittke describe how the boxing gloves were actually unduly interfering with the driver’s vision, thereby justifying the traffic stop. To the contrary, Patrolman Wittke describes with specificity several hundred feet of Mr. Rosato’s driving and never once mentions that Mr. Rosato was possibly hesitating, swerving, failing to yield, driving erratically, or crossing travel lanes that might suggest that the driver’s view was actually impeded or his driving compromised due to the
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hanging objects. 1T 5:19 to 10:4. Indeed, consistent with the fact that the automobile was otherwise being driven safely, with the exception of N.J.S.A. § 39:3-74, the driver was not cited by
Patrolman Wittke for violating any other traffic ordinances that evening. 1T 25:23 to 25:25. Additionally, there was no testimony whatsoever that the miniature boxing gloves were swinging in front of Mr. Rosato’s face or that he had to peer around them, nor was there testimony about how the angle of vision for the driver was actually obscured. 1T 4:21 to 51:11.
Moreover, Patrolman Wittke’s standards on which he bases a
N.J.S.A. § 39:3-74 stop are non-existent or contradictory. He admitted that he pulled Mr. Rosato over solely based on the objects hanging from the rearview mirror, although he could not identify the objects at the time of the stop and could not describe how large the objects appeared to him at the time. (1T
40:1 to 41:1). When asked if the objects hanging from the mirror had been a Christmas tree air freshener would he have pulled the vehicle over, Patrolman Wittke said “I don’t think so, unless it was possibly one of the larger Christmas trees.”
1T 41:4 to 41:6.
Q. “Why would you not pull someone over if they had say a four inch air freshener in their car?”
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A. “Because I don’t think that would obstruct their view like the items that I saw.” 1T 41:19 to 41:22.
When asked on cross examination to articulate his standard of what constitutes a violation of N.J.S.A. § 39:3-74, Patrolman
Wittke provided the following responses:
Q. Just so I understand your testimony and your policy, can you explain to me again the difference between stopping someone with a
Christmas tree air freshener and stopping someone with an object that you cannot identify as a Christmas tree air freshener?
A. The difference?
Q. How do you—what is your decision point?
How do you decide? For instance I have a cell phone wire hanging from my rearview mirror.
How do you decide not to stop and who to stop based on something dangling from a rearview mirror?
A. By how far the items hang down, whether, you know, either --- I can see the silhouettes of people’s heads, even at night and I can see the silhouettes of the items, whether it appears to be, you know, if it’s not impeding their vision in any way. If a
Christmas tree air freshener was hanging down lower, I would possibly stop them for it. But if it’s up higher like, you know, a regular
Christmas tree air freshener, I probably wouldn’t stop them for it. It all depends on the placement of the item.
Q. So, pretty much in the length of the string?
A. It could be the string; it could be whatever part it is.
. . . .
Q. Does it depend at all on the size of the object?
A. Sure.
Q. And what are the maximum parameters?
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THE COURT: Are you asking, in the Officer’s mind, if he has parameters?
Ms. Surgent: Yes I am, Your Honor.
A.
I don’t have any parameters.
Q. So it’s just a case by case basis?
A. Yes.
1T 49:6 to 51:9.
Devoid of any consideration in Patrolman Wittke’s subjective explanation is whether the hanging items actually unduly interfered with the driver’s vision and affected the safe operation of the motor vehicle. The Patrolman flatly admitted that he has no parameters for what constitutes a N.J.S.A. §
39:3-74 violation; he bases his decision on the length of a string, how far an item hangs down, and whether he has clear vision of the driver’s head. 1T 49:6 to 51:9. If an item is low he “might stop”, but if it is a smaller Christmas tree air freshener he would not. Id. The miniature set of boxing gloves and the small Christmas tree air freshener measure approximately the same in total square inches. 1T 58:23 to 60:11. Yet, according to Patrolman Wittke, the smaller Christmas tree air freshener would not violate N.J.S.A. § 39:3-74, but the miniature boxing gloves do. 1T 41:2 to 41:11. As he stated,
Patrolman Wittke makes his stops on a “case by case basis.” 1T
51:7 to 51:8. The actual operation of the motor vehicle and whether the objects were in-fact unduly obstructing the driver’s
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vision are not worthy of mention in the things he considers before deciding to stop a vehicle for violation of the statute.
1T 49:6 to 51:9.
Based on his testimony, Patrolman Wittke’s belief that the three-inch boxing gloves were impeding Mr. Rosario’s operation of the vehicle in violation of N.J.S.A. § 39:3-74 had no rational, reasonable, quantifiable, articulable, or objective basis whatsoever at the time of the stop. The Colorado,
California, and Massachusetts courts have each rejected similar attempted justifications for motor vehicle stops based on comparable statutes, saying that they do not rise to the objectively reasonable support necessary to justify a traffic stop. This Court has sufficient persuasive precedent from these states and from the facts of this case to do the same.
The October 21, 2005 traffic stop of Mr. Rosato’s automobile was unlawful, and the subsequent seizure of evidence should be suppressed. As the Justice Cohen of the Appeals Court of Massachusetts so succinctly said, “[w]e doubt that the
Legislature intended this ordinary practice [of hanging small items from rearview mirrors] to be grounds, without more, for issuing a citation or justifying a stop by the police.”
Brazeau, 64 Mass. App. Ct. at 68.
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CONCLUSION
For the foregoing reasons, the January 18, 2007 decision by the Superior Court, Law Division, Monmouth New Jersey Vicinage, denying the Defendant’s motion to suppress the evidence of controlled dangerous substances obtained on October 21, 2005 by virtue of an illegal seizure should be reversed and the case remanded.
Respectfully submitted,
Yvonne Smith Segars, Esq.
Public Defender
Dated: September 18, 2008
Joseph Anthony Manzo, Esq.
Designated Counsel
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