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(TWO CASES)

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New Jersey Superior Court Reports
STATE v. WOJTKOWIAK>, 170 N.J. Super. 44 (1979)
405 A.2d 477
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DOUGLAS <WOJTKOWIAK>,
DEFENDANT-APPELLANT.
Superior Court of New Jersey, Law Division (Criminal).
August 2, 1979.

  Appeal from Burlington Township Municipal Court
Page 45

  Mr. George Ciszak for respondent (Mr. John J. Degnan,
Attorney General of New Jersey, attorney).

  Mr. Allen Etish for appellant (Messrs. Greenberg,
Shmerelson, Weinroth and Etish, attorneys).

  WELLS, J.S.C.

  This is an appeal from defendant's municipal court conviction
for speeding 68 m.p.h. in a 55 m.p.h. zone. At the request of
defendant, and with the State's consent, the court opened the
record below for the sole purpose of determining the scientific
reliability of the K55 Radar Speed Detection Device. Defendant's
conviction rests on a speed reading displayed by the K55 in State
Trooper Albert J. Dempster's troop car as he and defendant
approached one another, Trooper Dempster in a northbound lane and
defendant in a southbound lane, on Route 295.

  Because defendant, unrepresented below, did not raise it, and
because both defendant and the State, on this appeal, advised the
court that questions about the reliability of the K55 were
affecting the administration of justice in the municipal courts,
the court believed limited reopening of the record was warranted.
R. 3:23-8(a) authorizes the appellate court to hold a "plenary
trial de novo without a jury" where "the rights of defendant
were prejudiced below." Because prejudice to defendant could only
have arisen from the municipal judge's unchallenged assumption of
reliability of the K55, the trial de novo is limited to that
issue. All other matters will be decided on the record below.

  Further authority, by analogy, is found in two recent instances
in which the Appellate Division, itself, returned cases to the
Page 46
trial court for plenary hearings on the scientific reliability of
devices used in law enforcement. State v. Hibbs, 123 N.J.
Super. 108 (App. Div. 1972), on remand 123 N.J. Super. 152
(Cty.Ct. 1972), aff'd 123 N.J. Super. 124 (App. Div. 1973);
State v. Boyington, 153 N.J. Super. 252 (App. Div. 1977).

  The legal criteria to be applied in admitting scientific
evidence are well established. Before the results of any
scientific test may be admitted in evidence it must be shown that
the equipment or the methodology used has a high degree of
scientific reliability and that the test is performed by
qualified persons. State v. Chatman, 156 N.J. Super. 35, 38
(App. Div. 1978).

  Speed-measuring radar in various forms has been accepted since
State v. Dantonio, 18 N.J. 570 (1955). See State v.
Overton, 135 N.J. Super. 443 (Cty.Ct. 1975) (Mark VIA), and
State v. Boyington, 159 N.J. Super. 426 (Law Div. 1978)
(Decatur Ra-gun); State v. Musgrave, 169 N.J. Super. 204 (Law
Div. 1979) (K55 Speed Detection Device held reliable). This last
decision is, of course, entitled to, and has received, great
respect as that of a court of coordinate jurisdiction, but it
does not appear that Judge Wichman heard conflicting expert
testimony and, accordingly, this court offers its opinion on the
same issue to analyze the reliability of the K55 in light of
expert criticism.

  Four experts, two called by each side, testified. In addition,
the State called Trooper Dempster. The State's witnesses were
principals of MPH Industries, manufacturer and distributor of the
K55. The first witness, Robert E. Patterson, who built a crystal
radio at age 10, is "entirely responsible for the total technical
design and construction and manufacture of the K55 radar." He is
a high school graduate with two years of college, graduated from
the Army's Signal School at Fort Monmouth and ended his military
career as head of maintenance of school equipment at the Missile
Guidance School at Redstone Arsenal. This military career gave
Patterson extensive theoretical and
Page 47
practical knowledge of radar of all types. Patterson, after his
military discharge, held successive jobs as chief electrical
engineer at several companies in the electronics and radar
industry in each of which degreed engineers reported to him. He
holds five patents in various types of electronic circuitry
design and built the first solid state cardiac monitors; he has
also designed or contributed to the design of music amplification
equipment, police radar (before the K55) and cardiac telemetry
equipment. These devices depend on a common thread of theory and
practical technology applicable to radar-informed speed measuring
equipment and, in several instances, Patterson was in the
forefront of the developing technology which finally emerged in
various speed measuring radar devices.

  The second State's witness was Edward Walker Sergeant. His
qualifications are detailed in State v. Musgrave, supra. In
this case Sergeant testified solely about the training programs
offered by MPH, and, in particular, about the one he gave to a
class of New Jersey State Troopers among whom was Trooper
Dempster.

  The defense's experts were Andrew L. Soccio and Dr. Leo
Nichols. Soccio's qualifications are outlined later in this
opinion. Dr. Nichols possesses a B.S. in Electrical Engineering
from Virginia Military Institute, a Master of Science in
Electrical Engineering from Ohio State and a Ph.D. in the same
subject from Virginia Polytechnic Institute. Although Dr. Nichols
holds a license as a professional engineer in Virginia, his
primary profession is that of teacher, having risen from an
instructor to his present position as head of the Department of
Electrical Engineering at Virginia Military Institute, a job he
has held for 11 years. He has taught basic electric circuits,
thermodynamics and microwave theory and techniques. He has
testified as an expert many times in several states on the theory
and operation of traffic radar.

  It is from the testimony of these witnesses, and Trooper
Dempster, that the court makes its findings on all aspects of the
Page 48
theory and operational characteristics of the K55 and, finally
evaluates its reliability.

                   Principles of Doppler Radar

  It is necessary to review certain basic ideas in order to
understand the K55 and to describe its limitations.

  Engineers generally depict radiant energy as moving in an
undulating wave form pattern called "cycles." The number of
cycles passing a given point in a given period of time is called
"frequency." In music, the frequency at which sound reaches the
ear determines the pitch people hear. Middle C on the piano, for
example, when played, produces a sound wave at a frequency of X
cycles a second, and the C one octave above middle C will
generate a sound wave at 2X cycles a second. The higher the
frequency, the higher the pitch will be. Note at the outset that
this relationship between frequency and pitch is direct and not
affected by other factors. For instance, it makes no difference
how loudly or how softly you play middle C, or if you play it
loudly and the octave C softly, the two sound waves produced will
still reach the ear at the same frequency, X and 2X cycles a
second. Nor does distance from the source of the sound make a
difference. If a pianist in a concert hall plays middle C, that
note is heard as middle C whether a listener is in the front row
or in the last balcony row.

  So far, we have considered a stationary source of sound waves.
Let us now take a moving source. Assume a passenger at a station
awaiting a train. Down track the train approaches at 50 m.p.h.
The engineer blows his whistle, which sounds a single
high-pitched note. The awaiting passenger will hear that single
note slide up the scale or, as we have just learned, its
frequency increases. This natural phenomenon, imparting the
vaguely romantic wailing sound of approaching or receding train
whistles, is the Doppler effect (or "shift") at an audible
frequency. Note once again the strength of the source (i.e.,
Page 49
whether the whistle blows loudly or softly) or its distance from
the listener has no bearing on the effect - the pitch will slide
up the scale, regardless of these factors as the train
approaches. Furthermore, by definition, the Doppler effect cannot
be heard from a stationary source. The frequency changes only
with movement of the source.

  All radar, including the K55, transmit or broadcast high
frequency microwave energy which emanates from the transmitter in
the cycle pattern and "echoes" back to the source. Sound, of
course, does this too, but the reflector must be quite large
whereas, with microwaves, small objects can and do reflect them.

  If either the source of the microwave transmission is moving or
a reflecting object is moving, the Doppler shift occurs. Thus if
a person sitting in the moving source could "hear" microwaves, he
would note a change in frequency of the returning cycles:
increased frequency if the reflector is moving toward him (as in
the case of the road or an approaching car) and decreased
frequency if the reflector is moving away. Physicists have
measured the frequency change and expressed the measurements in
one of those simple, elegant formulae to which all nature appears
ultimately reducible:

                                  2vf
                         f[dop] = ___
                                   c

where f[dop] is the frequency of the returning microwaves, v is
the velocity (speed) of the reflector, f is the transmitted
frequency from the microwave source and c is the speed of light.
Since c is always constant and the transmitter sends out
microwaves of a known f, the only variable in this formula is v.
Note, once again, that distance between source and reflector is
absent from the formula as is any factor for the strength of
either the transmitted or echoed energy.
Page 50

     Description of the K55 - Its Implementation of Doppler
                           Principles

  The K55 unit is a small rectangular instrument which resembles
a digital clock radio with switches, buttons and two windows on
its face, one for patrol car speed and one for target vehicle
speed. These readings appear as lighted, red digital numbers on a
black background much as a digital clock or modern calculator.
When no readings are being displayed, only the black background
can be seen. The set is secured to the dashboard of the patrol
car directly behind the steering wheel and can be readily seen
either over or through the wheel. It is so small that it cannot
obstruct the driver's vision through the windshield. The set can
be plugged into the vehicle's power source in several ways, one
of which is through the cigarette lighter, and it comes with an
antenna and transmitter-receiver which is secured to the center
of the dashboard.

  The transmitter-receiver and antenna are constructed of
standard components based on well known and accepted technology
for the transmission and reception of high-frequency energy. The
K55 does not use any experimental, new or patentable component or
process in the antenna or transmitter-receiver. Every transmitter
is factory-tested with instruments which derive their accuracy
from the National Bureau of Standards in Washington, D.C. The
transmitter-receiver has also been tested by an independent
concern to verify that it transmits at the frequency assigned to
enforcement radar by the F.C.C.

  When the set is turned on and calibrated[fn1] it may be
operated in two modes: stationary and moving.[fn2] Each mode may
be
Page 51
controlled in either manual or automatic position.[fn3] With the
antenna pointed straight out the windshield over the imaginary
centerline of the patrol car and the power on, the transmitter
will emanate a large lobe of high frequency microwave energy down
the road. The set may be adjusted to give audible warning of a
motorist approaching in excess of a predetermined speed; but the
warning signal is not a prerequisite to reliable operation. The
machine displays readings continuously for speeds between 20
m.p.h. and 99 m.p.h.

  As the patrol car moves over the road, the microwaves reflected
from the road will arrive back at the receiver at a frequency,
predicted by the Doppler formula, varying with the speed of the
patrol car. Let us call that frequency, frequency "X". Now assume
a target vehicle approaches the patrol car. Microwaves reflected
from the target vehicle will arrive back at the receiver at a
frequency predicted by the Doppler formula varying with the sum
of the speeds of both cars. Let us call that frequency, frequency
"Y". Virtually by definition, frequency X will always be less
than frequency Y. In the stationary mode only the high frequency
"Y" is received and computed into a readable speed.

  Thus, in the case of vehicles approaching one another
("closing") there are two returning frequencies, X and Y, both
higher than the frequency originally transmitted, but Y always
being greater than X. Because the transmitted frequency is
constant, it can be dropped from further consideration and
attention focused on the difference between X and Y, and they can
now be called the low frequency (X) and high frequency (Y)
returns.

  We are now finished with the Doppler effect. All the rest of
the K55 is devoted to processing the low and high frequency
Page 52
return signals into a readable speed in miles per hour of the
patrol car and target vehicle. But review what has been
accomplished: Because of a single variable, speed, in one case
relative to the road and, in another case, relative to a closing
vehicle, two completely distinct frequencies have been generated,
which can be computed into the speeds that generated them.

   Description of the K55 - Signal Processing & Digital Units

  The high and low frequency returns from the receiver flow into
the signal processing and digital unit of the K55. A precise
technical description of the components and circuitry of the
signal processor would take hundreds of pages, but the court
finds that all of its individual components are standard and used
in the K55 within their respective design limitations. The
components are manufactured by reputable concerns such as RCA and
Texas Instruments and are available generally on the wholesale or
retail market for a wide variety of uses in electronic circuits,
from radios and pacemakers to satellite telemetry. They all have
known and accepted parameters of performance and durability in
the industry.

  Although the exact combination of components comprising the
circuitry of the signal processing unit may be unique to the K55
(in one case a patent is pending with respect thereto), the
overall circuitry design is also within industry-known, and
accepted, electronic theory and practice. Neither the function
nor the efficiency of any component is frustrated by its
particular use or placement within the design of the signal
processing unit.

  The signal processing unit has ten functions, all of which it
performs more or less simultaneously and in milliseconds: (1) it
amplifies the high and low frequency returns from the receiver;
(2) it filters out frequencies resulting in patrol car speed of
less than 20 m.p.h.; (3) it separates the signal into low and
high
Page 53
frequency channels of parallel design, and as to each channel,
(4) it filters random frequencies (commonly referred to as
"noise") from the Doppler frequency being returned; (5) it tracks
and locks on the Doppler frequencies and verifies them as the
frequencies to be computed into vehicle speeds and, in the case
of the high frequency channel; (6) it passes the now clear and
verified signal into a subtractor, and in the case of the low
frequency channel; (7) it passes one part of the signal directly
to a digital computer unit which computes and displays patrol car
speed in miles per hour; meanwhile (8) it passes the other part
of the low frequency signal into the subtractor where, (9) it
subtracts the high and low frequency signals and (10) it computes
and displays the target speed in miles per hour.

  The processing unit sweeps through these functions so quickly
that a newly computed reading arrives at the viewing window about
15 times a second. In the manual mode the reverification and
computing process is continuous throughout the time and distance
the vehicles are closing and thus permits the officer to lock in
a reading manually when, in his judgment, the target has been
properly identified and the reading stabilizes. In contrast, in
the automatic mode, the K55 itself, automatically, locks in the
first reading computed from a discerned signal. MPH does not
recommend the use of this position and present State Police
policy forbids it.

  One of the most important overall operations of the machine
that emerges from the ten-step process described above causes it
to focus on or to tune to, precisely and automatically, the
strongest frequencies being passed to it by the receiver. To use
a mundane simile, also from the law enforcement field, the K55
acts like a well-trained bloodhound, who once given an example of
the target scent, wants to, and can, filter out or discriminate
between all the other distracting scents its nose senses and
track the target scent. This simile, however, should not be
misunderstood. The "strongest" signal to a radar may not mean the
Page 54
fastest car. Thus, as we shall see, signal strength depends on
proximity to the transmitter and thus a slower target may well
dominate the radar to the exclusion of a faster, but more
distant, target.

                     The Technical Challenge

  After extensive direct and voir dire examination, Andrew L.
Soccio was permitted to testify for the defense as a highly
experienced technician in the field of electronic circuits.
Soccio is not a physicist, scientist or engineer; he has not
designed a radar-informed speed measuring device from scratch.
But he is entirely familiar with electronic circuitry, the
various components that comprise modern circuitry and the various
methods common in testing such circuitry. Soccio can build a
complex electronic circuit from a schematic diagram; he can
analyze its function; test performance of that function and
evaluate its performance. The court believes that in certain
cases Soccio has the experience to design or redesign electronic
circuitry to improve its intended function or increase its
efficiency. After a wide variety of experience in various jobs in
the electronics industry, Soccio opened his own business which is
devoted to troubleshooting and repair of traffic radars in South
Jersey. He has not, under contract or otherwise, serviced the
K55.

  Soccio's qualifications did not include extensive or intimate
knowledge of the K55. He disassembled one in Florida this winter
and examined certain parts of its signal processing unit for
about an hour; he observed K55s in operation on police cars for
about six hours, and he obtained and copied a partial schematic
diagram of the signal processing unit issued by MPH to police
departments for making repairs. Using this schematic, Soccio
built, in his home laboratory, out of standard components, two
elements of the circuitry in the signal processing unit and
tested them. These elements were the "phase lock loops" and
Page 55
related components used in the high and low frequency channels.
(See step 5, pages 52-53, supra). Based on these tests it was
Soccio's opinion that the phase lock loops in both the high and
low frequency channels possessed too wide a latitude in which to
monitor and lock on an incoming frequency. Depending on minute
transient errors in voltage, the phase lock loops operating in
such a latitude could lock on a wrong frequency and pass it
through to be computed.

  Patterson, called in rebuttal, challenged both the design of
Soccio's home-made circuits because the schematic was incomplete,
and his tests because they were inadequate. It was his view that
the overall design of components aligned after the phase lock
loops in the circuit functioned together to nullify both the
underlying assumptions of the Soccio tests and the test methods
and equipment used.

  Thus was framed the most important and difficult single issue
in this case: to believe the architect of the K55 or the
technically astute opposing witness. After due consideration the
court is satisfied that the Soccio tests do not raise a
reasonable doubt as to the technical capability of the signal
processing unit of the K55 to turn the high and low Doppler
frequencies into accurate readings of patrol car and target
speeds. The court is not satisfied that there was sufficient
similarity in all necessary respect between the Soccio prototypes
and the actual, complete circuitry of the K55. Furthermore, the
court does not believe the test methods used by Soccio were
sufficiently accurate to ground the broad opinion he gave on the
K55's potential for displaying undetected, erroneous readings to
a reasonably skilled operator.

                    The Operational Challenge

  The operational challenge to the K55 was grounded in the
testimony of Dr. Nichols. He highway-tested the K55 in both Ohio
and Florida for about 20 hours altogether. On these occasions,
accompanied by others, he operated the K55 himself
Page 56
and observed others do so. All the participants were civilians
with engineering training and experience. No K55-trained
policemen assisted, nor had anyone performing the tests received
training from MPH. In at least one instance the test was financed
by Fuzzbuster, a manufacturer of traffic radar countermeasures.

  In Florida six makes of radar were operated in a single
vehicle, calibrated and tested for interference with internal
noises such as generators, fans and the like. Then the vehicle,
with the radars switched on in pairs, was driven on randomly
selected highways in Miami and its environs. No written record of
the tests were made, nor were any targets of known speed run
through the radars. The radars were operated in both stationary
and moving modes and in manual and automatic positions. Based on
this experience and his own academic background Nichols' thoughts
fell into four general problem areas: (1) problems of target
identification where there were several possible targets
approaching; (2) problems of cosine error resulting in
computation of lower-than-actual patrol car speed; (3) problems
of internal and external mechanical, radio or microwave frequency
interference, and (4) problems of a subjective nature. In all of
these areas the K55 seemed to be most prone to potential error
where it was switched to the automatic position.

  Dr. Nichols identified two sources of difficulty relating to
target identification. Both problems arise from the necessity to
decide which of several possible targets is actually generating
the speed readout.

  As indicated on pages 53-54, one of the design characteristics
of the K55 is to track, hold and verify the strongest frequency
being echoed to it. In practice, the strongest return frequency
is usually that which is closest to the receiver. Thus, MPH in
its Operator's Manual directs:

    Care should be taken by the operator that he
  recognize the violator is traveling at a higher rate
  of speed than the norm, that the vehicle is out in
  front, by itself, nearest the radar. [Emphasis
  supplied]

Page 57

  But Nichols testified that a large target, rather than one
closer to the patrol car, may actually be reflecting the
strongest signal. Thus, if a truck is following a Volkswagen the
K55 may compute the truck's speed rather than the Volkswagen's,
contrary to the above-quoted identification rule. He also pointed
out that some materials and shapes are better reflectors than
others and could result in a more distant target, producing the
reading, if made of such materials or in such shapes.

  The court is satisfied that this problem could and probably
does occur in a very close-following situation, and policemen
should be alerted to the possibility of an incorrect
identification. But Dr. Nichols gave no guidance whatsoever as to
what was "close following." He apparently could not and did not
say whether at 50 feet, 25 feet or at what distance between the
approaching truck or Volkswagen, the rearward truck would begin
to produce the stronger signal. Thus, the court finds the
above-quoted rule a reasonably reliable guide on which to base
identifications in the situation described.

  Dr. Nichols also sought to describe target-identification
problems where a possible violator was closer to the centerline
of the transmitted microwaves than a target nearer in distance to
the transmitter. He (as well as other witnesses) described the
imaginary extended centerline of the patrol car (with the antenna
so aligned) as the line of maximum transmitted power, and
suggested that a return signal along that line would also be
strongest. He pointed out that signal strength falls off far less
as one moves away from that centerline than it does as one moves
away from the transmitter. It has been found that one-half of the
energy transmitted lies within an angle of 8° on either side of
the centerline and, Dr. Nichols estimated, if the sides of that
angle are carried out as much as 1500 feet from the patrol car,
85% of all the transmitted energy would lie within it. According,
to Dr. Nichols, therefore, a target physically closer to the
centerline, but more distant from the patrol car than the target
nearest the patrol car, might produce a reading. An
Page 58
unwary policeman might attribute that reading to the vehicle
closest to the patrol car, thus resulting in an unjust arrest.

  But Dr. Nichols' views in this respect were unsupported by any
precise measurements or detailed tests. None of his highway tests
was performed under controlled conditions. No experimental
results or theoretical models were adduced to demonstrate Dr.
Nichols' theories, to any degree of scientific probability, that
a nearer target would produce a signal less strong than a more
distant one, notwithstanding such distant target's proximity to
the centerline of the micro-move-energy lobe. In fact, in most
situations presented him, Dr. Nichols appeared to believe the
nearest vehicle to the patrol car would generate the reading.
Because it is true that signal strength (not frequency and hence
not accuracy of a reading) falls off by the square of the
distance from the transmitter, the court finds it more probable
that that distance is, in fact, the key one, and therefor, once
again, finds the quoted rule of identification reasonably
reliable.

  Dr. Nichols described cosine error as that error in target
speed, which results from the fact that the Doppler frequency
reflects along the line between the target to the patrol car,
whereas the target is actually moving, not straight at the patrol
car, but at an angle to it. Because of the trigonomic function of
the cosine, which is always less than 1, the error always favors
the target, i.e., displayed target speed is less than the actual
target speed. But Dr. Nichols also theorized cosine error could
reduce the display of patrol car speed. This is, potentially, a
serious matter since reduced patrol car speed would result in
false, higher target speed readings. Thus, if a huge sign or a
long building with a long reflective surface on the side of the
road reflected a signal stronger than that of the road and
thereby generated the low frequency return for computing the
patrol car's speed, the angle of such an object relative to the
motion of the car might theoretically reduce the patrol car's
speed reading by the cosine error.
Page 59

  However, the court determines such situation would be
necessarily rare, and the reading generated, transitory.
Moreover, an alert officer, checking his patrol car readout
against him speedometer, should note dropping speed and reject
any target speeds obtained in that situation. Accordingly, the
court determines that while cosine error as it affects patrol car
readout may be a theoretical problem, its significance in routine
traffic situations is not such as to raise a reasonable doubt as
to the reliability of the K55 when operated by a trained and
experienced officer.

  Dr. Nichols also testified to internal and external sources of
interference with the K55 which can produce spurious speed
readings. The K55 possesses circuitry designed to filter out most
internal and some external interference. Like all radar devices,
the K55 can, and does, receive signals other than that which it
originally transmitted. A wide variety of devices in relatively
common use transmit electromagnetic energy at frequencies at or
close to those assigned by the F.C.C. to police radar. Depending
on the strength of these signals, which again depends on how
close the source is to the K55, a speed reading can appear.

  The signal processing unit may itself reject the signal and
cause the reading to go blank, or the reading will be erratic, or
so high or low as to tip the operator off at once that electronic
interference may be present. Nonetheless, troopers are trained
not to use their own radios when patrolling for speeders and to
be mindful of the use of CB radios in the vicinity of the patrol
area. Airports and even low strung high tension wires may also be
common trouble spots. State and local police may well be advised
to begin to catalog, within their respective jurisdictions, the
existing sources, strength, frequency, range and direction of
radiated energy which might intersect with or flow over the roads
and highways. Armed with such information, tests could be run to
determine the effect, if any, on the K55.

  By so suggesting, however, the court does not wish to leave the
impression that external radio or microwave interference
Page 60
seriously detracts from the reliability of the K55. The court is
satisfied that the chance of an undetected interference
increasing a speed reading, to the detriment of a motorist, is so
remote as not to raise a reasonable doubt under the "high degree"
of reliability standard here at issue. Absolute perfection, of
course, is not required.

  As a result of his Florida tests, Dr. Nichols expressed certain
subjective reservations about the K55. He expressed concern over
the practical difficulties of target identification in the
multiple-lane, heavy traffic situation, and surprise at the
variety of response times in the various radars and the
differences between them in the speed with which they repeated
their readings. He stated the K55 did not give him "the personal
satisfaction that it was as stable and as reliable in the
quickness with which it reached a reading that seemed to satisfy
the physical situation as the others." He also stated, "it seemed
to be more erratic to me. It went up too far or down too far. The
swings were more violent. Ultimately it would stabilize and come
back and give an adequate and satisfactory reading."

  Considering the qualifications of Dr. Nichols, these
observations are entitled to respect. In fact, to the extent he
notes that the K55 did come to an "acceptable" reading as
compared with other radars, he points to the sensitivity of the
K55 in the manual position in rejecting spurious readings or
other transitory phenomenon. Since Dr. Nichols was as critical of
the automatic position, with its ability to lock in a transitory
reading, as Patterson, the court finds it difficult to understand
his subjective feeling about the K55. In any event, such feelings
do not raise a reasonable doubt in the court's mind as to the
reliability of the K55 when operated in the manual position.

                       Ghosts and Shadows

  Every law enforcement tool, whether it be a radar set or a
bloodhound, must be understood and used within its inherent
Page 61
limitations. The K55, as all radar, has such limitations.
Transmitted signals echo randomly from anything the microwaves
reach and sometimes that signal, echoed from a tree, fence or
billboard, will a second time be reflected from a moving object
out of the trooper's visual range and be received and processed
as a speed reading. These are "ghost" readings - spurious speed
readings of unseen vehicles or stationary objects. He who
seriously reports tracking speeding trees with the K55 is either
a fool or a knave, since such a report presents an inherent
conflict with the underlying Doppler principle.

  Such ghosts will be either so transitory or display such
erratic readings that any experienced operator will at once
recognize them. Moreover, ghosts will always be banished by a
stronger signal because the K55 functions to find the lock on the
strongest signal returning to it. Ghost readings cannot add to or
detract from the speed of a real target. None of the experts
challenged its reliability in that respect.

  "Shadowing" occurs when the patrol car closely follows or is
overtaken by a truck or large car with the K55 on in the moving
mode. The signal usually returning from the road surface may now
be temporarily supplanted by the stronger signal returning from
the vehicle in front. Since that vehicle is traveling slower
relative to the patrol car than the road was, the viewer will
notice an apparent decrease in the speed reading of the patrol
car. Any reading taken on a target vehicle under such conditions
would be inaccurate.[fn4] But the evidence is clear that State
Troopers are trained to check continually, while in the moving
mode, the K55 display of patrol car speed with the speedometer.
Any difference between the K55's reading and the speedometer is a
trouble sign that will suggest caution on the part of the trooper
in relying on a target speed reading.
Page 62

                            Training

  The court finds that the operational reliability of the K55 is
largely dependent upon the training and experience of the
policemen who use it. In State v. Dantonio, 18 N.J. 570,
573-574 (1955), the court quotes a law review article stating
that "the average person engaged in traffic control work can
learn to use the radar speedometer after about one and one-half
hours of instruction." Judged by that standard, the State Police
get ample instruction in theory and practice on the K55. Trooper
Dempster, for instance, received a full day of classroom and
"hands on" practical instruction from MPH, Inc., representatives,
and then "practiced" with the machine in his own patrol car 80
hours before he arrested violators. Such a level of instruction
and experience acquaints the officers with the technical
capability of radar as well as practical use in everyday traffic
situations. For instance, like our bloodhound who cannot, having
found the source of the scent, identify it as a vicious criminal
or a lost child, so also cannot the K55 identify the speeding
vehicle: the officer using it must do that. Troopers are taught a
three-step procedure when the K55 displays a target speed: (1)
identify the probable target producing the reading; (2) lock in
the speed, and (3) compare visually the speed displayed with the
officer's own estimate of the target's speed. This must be a
complex procedure requiring well-coordinated eye and hand
movement as well as the exercise of quick judgment. The officer
must, also, be monitoring his own speedometer with that of the
K55's readout on patrol car speed and driving his car with
safety. With some traffic patterns, such as heavy approaching
traffic in multiple lanes where no one car is clearly in front,
it will always be difficult if not impossible to identify a
target. But experience should quickly expose such situations.

  In view of the above, however, and the high degree of skill and
judgment required to operate the K55 reliably, it is the
Page 63
court's view that periodic follow-up training be instituted in
order to verify continuing qualification as a K55 operator.
Moreover, the skill and judgment of troopers who themselves
instruct in its use should be most carefully evaluated.

  Finally, it is clear from the testimony of all the witnesses,
that the K55 should not be operated in the "automatic" position
in either the moving or stationary mode. That is present State
Police policy and should remain so. By "automatic" in the sense
used here, is meant that position on the K55 which
"automatically" locks on the first echo it receives and processes
that echo to a readout and will not then process further echoes.
Thus may be instantaneously captured an interfering signal or a
ghost which would not be reflected from the visible target.

                           Conclusion

  For all the reasons stated above the court determines that a
properly calibrated K55 Speed Detection Device installed in a car
with a calibrated speedometer has a high degree of scientific and
operational reliability when used in either stationary or moving
mode, in the manual position by a person having at least three
hours of classroom training and two to three hours of practical
instruction together with some minimum experience prior to use in
actual law enforcement. The court, on the record before it,
cannot specify what the minimum experience should be but holds
that 80 hours is, beyond doubt, sufficient.

  When operated in the automatic position the operational
reliability of the K55 is subject to greater question, and
acceptance of readings while in that position must hinge to a far
greater extent on detailed examination of the surrounding
circumstances as well as the experience and training of the
operator.
Page 64

  In view of the holding above, the court will shortly schedule
argument on any and all other issues defendant may choose to
raise on the record below relevant to his conviction.

[fn1] Calibration is accomplished with the use of two tuning
forks, the accuracy of which must be the subject of documentary
proof. Use of the K55 does not eliminate the need for such proof.
Cf. State v. Overton, 135 N.J. Super. 443 (Cty.Ct.
1975).

[fn2] The "mode" of operation refers to what the patrol car does.
In the stationary mode, the car is parked roughly parallel to the
road directed at oncoming traffic. In the moving mode the patrol
car operates in traffic and tracks vehicles approaching it in the
opposite lane. All findings herein apply equally to both modes
of operation.

[fn3] The difference is important and is explained in the text at
pages 52-54.

[fn4] See, also, the discussion, at 58, regarding reduced patrol
car speed as the result of cosine error.



-----------------------------------------------------------------
New Jersey Superior Court Reports
STATE v. WOJTKOWIAK, 174 N.J. Super. 460 (1980)
416 A.2d 975
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DOUGLAS WOJTKOWIAK,
DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued May 13, 1980 -
Decided June 19, 1980.

  Appeal from Superior Court, Law Division.

  Allen A. Etish argued the cause for appellant (Greenberg,
Shmerelson, Weinroth & Etish, attorneys).

  George Ciszak, Deputy Attorney General, argued the cause for
respondent (John J. Degnan, Attorney General, attorney;
Stephen H. Monson, Deputy Attorney General, on the brief).
Page 461

  Before Judges MATTHEWS, ARD, and POLOW.

  PER CURIAM.

  Defendant was convicted in the Burlington Township Municipal
Court of speeding (N.J.S.A. 39:4-98). He appeared pro se in
the municipal court but retained counsel for his subsequent
appeal to the Law Division.

  The case was tried de novo before Judge Wells in the Law
Division, and he filed an opinion which is reported at 170 N.J.
Super. 44. Defendant, through counsel, asserted the
unreliability of the K-55 Radar device which clocked his speed
and was the basis for his conviction in the municipal court.
Judge Wells refused to accept the argument since he found that
defendant had failed to raise the issue before the municipal
court. However, relying on R. 3:23-8(a) he determined to hold a
"plenary trial de novo" on the issue of reliability of the K-55
Radar.

    Because defendant, unrepresented below, did not
  raise it, and because both defendant and the State,
  on this appeal, advised the court that questions
  about the reliability of the K55 were affecting the
  administration of justice in the municipal courts,
  the court believed limited reopening of the record
  was warranted. R. 3:23-8(a) authorizes the
  appellate court to hold a "plenary trial de novo
  without a jury" where "the rights of the defendant
  were prejudiced below." Because prejudice to
  defendant could only have arisen from the municipal
  judge's unchallenged assumption of reliability of the
  K55, the trial de novo is limited to that issue.
  All other matters will be decided on the record
  below. [170 N.J. Super. at 45.]

A plenary trial on the issue was in fact conducted before Judge
Wells and that record is commented upon and evaluated in a
comprehensive opinion which is reported as cited above. Defendant
was found guilty on the trial de novo.

  While it is stated by Judge Wells that defendant consented to
the proceedings as they were conducted in the Law Division, we
believe that the record discloses that the "consent" was not of
such voluntary nature so as to give validity to the procedure
followed. In fact, defendant did raise the issue of reliability
in the municipal court albeit in layman's terms. Moreover, a fair
reading of his comments to the municipal court judge certainly
demonstrates that he was challenging the reliability of the
instrument. Since this is so, defendant's conviction could not be
supported by the finding of reliability made by Judge Wells in
the Law Division. State v. Tropea, 78 N.J. 309 (1978); State
v. Musgrave, 171 N.J. Super., 477 (App. Div. 1979).
Page 462

  While we vacate defendant's conviction, we believe it to be in
the public interest for us to review the materials and testimony
presented to Judge Wells in the Law Division with respect to the
reliability of the K-55 Radar. We do so by exercising original
jurisdiction, N.J.Const. (1947), Art. VI, § V, par. 3; R.
2:10-5; Blasi v. Ehret, 118 N.J. Super. 501, 502 (App. Div. 197
2); State v. South, 136 N.J. Super. 402, 408 (App. Div. 197
5), certif. den. 69 N.J. 387 (1976). In addition to
examining the record made before Judge Wells, we undertook to
have the K-55 Radar demonstrated to us by Sergeant First Class
Hale of the New Jersey State Police who is fully knowledgeable of
the radar and also conducts courses for State Police personnel in
the operation of the K-55. Our purpose in obtaining the
demonstration, which included operation of the device in a moving
vehicle, was better to understand the evidence produced before
Judge Wells. The demonstration was, in our judgment, analogous to
a "view." See N.J.S.A. 2A:77-1; Bancroft Realty Co. v.
Alencewicz, 7 N.J. Super. 105, 109-110 (App. Div. 1950); State
v. Coleman, 46 N.J. 16, 25 (1965), cert. den.
383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966).

  Our examination of the record before Judge Wells as illuminated
by the demonstration given to us by Sergeant Hale, whose
knowledge and studious objectivity contributed greatly to our
understanding of the matters contained in the record, satisfies
us that Judge Wells correctly concluded, and we now conclude,
that the K-55 Radar is completely reliable as a speed measuring
device provided that it is properly operated by an individual who
is competent to operate the radar after having been trained in
its use. In support of this conclusion we incorporate into this
opinion that portion of Judge Wells' opinion which is reported on
page 170 N.J. Super. 48, through the first three lines of page
62.[fn*]
Page 463

  In future cases involving the use of the K-55 Radar as the
speed measuring device, the State should adduce evidence at the
municipal court level as to (1) the specific training and extent
of experience of the officer operating the radar>, (2) the
calibration of the machine in which at least two external tuning
<forks> both singly and in combination should be employed, and (3)
the calibration of the speedometer of the patrol car in cases
where the K-55 is operated in the moving mode. We are also
satisfied that the radar should be operated in the manual
position at all times.

  We must emphasize that it is readily apparent that while the
K-55 Radar is an accurate and reliable tool for the measurement
of speed, its accuracy and reliability in any case are no better
than the skill of the person operating the radar. We make this
emphasis as a warning to all police departments to the end that
proper courses of instruction be developed before the K-55 Radar
device is employed in any municipality. We are satisfied that
such a program presently exists in the Division of State Police.

  Defendant's judgment of conviction in the Law Division is
reversed.

[fn*] On page 49 of 170 N.J. Super., Judge Wells refers to a
formula. That formula is probably a simplified version used by
the expert during his testimony. The full and correct equation
appears to be:

              (c + 2 v[r])
     f[dop] = ____________ f,
              (c + 2 v[s])

where f[dop] is the returning frequency, f is the source
frequency, v[r] is the velocity of the reflector, v[s] is the
velocity of the source, and c is the speed of light. For
stationary sources (where v[s] is zero) the equation becomes

              (c + 2 v[r])
     f[dop] = ____________ f,
                      c