A police officer who used his flashers when pulling up behind a parked car had not “stopped” the car’s driver, the Appellate Division of the Superior Court of New Jersey found late last month in the case of State of New Jersey v. Joseph Adubato.
On the night of August, 2008, a North Arlington police officer, Michael Horton, received a call from dispatch that a vehicle had been seen “continually driving around” a neighborhood, and that “driver [kept] exiting the vehicle.” The call also provided a license plate number.
When Horton arrived in the neighborhood, he found the reported car stopped by the side of the road. Its headlights were on and its engine was running. The car’s driver, Joseph Adubato, was talking loudly on a cell phone. Horton pulled up behind the car and activated the emergency flashers on his police car.
When he approached Adubato, Horton noticed an odor of alcohol, bloodshot eyes, and slurred speech. Adubato told him that he had been drinking at a pub. Horton administered field sobriety tests and Adubato was arrested and charged with DWI.
At the time of the arrest, Adubato had been parked in front of his house, but this was not known to Horton at the time. Adubato argued in court that Horton had not had probable cause to stop his vehicle. The Appellate Court was called upon to decide whether the incident constituted a “stop” within the meaning of Terry v. Ohio, 392 U.S. 1 (1968).
They found that it did not. When Horton pulled up behind Adubato, he “did not know whether he was dealing with an intoxicated driver, a lost driver, someone with car trouble, or … someone who was looking around the neighborhood for opportunities to engage in criminal conduct.”
The court further reasoned that Horton’s use of his flashers did not make the situation a “stop.” The incident happened at night, and the use of the lights may have been intended to “reassure [Adubato] that the person parking behind was a police officer rather than a stranger with potentially unfriendly intentions.” The lights were therefore intended to enhance both Horton’s and Adubato’s safety.