Opinion
DOCKET NO. A-0911-15T2
05-16-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. MARK DUNBAR, Defendant-Respondent.
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant (Keri-Leigh Schaefer, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-03-0454. Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant (Keri-Leigh Schaefer, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief). PER CURIAM
Defendant Mark Dunbar was charged in a grand jury indictment with three counts of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). At the time of his arrest, defendant was also charged with parking in a handicapped parking space, N.J.S.A. 39:4-138o, and possession of CDS in a motor vehicle, N.J.S.A. 39:4-49.1. Prior to trial, the court granted defendant's motion to suppress the drugs seized from the trunk of his automobile during a warrantless search. The State moved for reconsideration, which the court denied on August 31, 2015. We granted the State's motion for leave to appeal from those orders. Because we conclude that the police lacked reasonable suspicion that defendant possessed drugs at the time and location they conducted a dog sniff of his vehicle, we affirm.
I.
The only witness at the suppression hearing was Officer Michael Tardio of the Bradley Beach Police Department (BBPD). Tardio testified that on April 28, 2013, he was called to respond to defendant's apartment complex on McCabe Avenue. Defendant reported he had received a harassing text message that said "[s]omething along the lines of, 'I'll bash your head in with a baseball bat if you sell my wife drugs again.'" Defendant stated that the message was from the husband of a friend of his named Lucy. Tardio called the number associated with the text message and, after leaving a voice mail, was contacted by Lucy's husband Dave who lived in Belmar. Dave admitted that he sent the message because his "wife is a drug addict and she was in recovery and she had recently relapsed, and [] [defendant] was selling her pills."
On May 2, 2013, Detective Adam Pharo of the Manasquan Police Department (Manasquan) contacted BBPD Detective Anthony Murray with information that Manasquan had received from an anonymous female regarding defendant. The caller told Pharo that she was getting drugs from defendant who lived on McCabe Avenue, and that defendant used a green Ford Focus bearing a specific license plate number to distribute drugs. Murray made a police report that was shared with members of the BBPD, including Tardio, the day before the search and arrest that are the subject of this appeal.
On May 3, at approximately 10:20 p.m., Tardio was on patrol in a marked police vehicle on Main Street near the Quick Chek convenience store. He observed a green Ford parked in a handicapped spot at Quick Chek with a license plate number matching that provided by the anonymous female informant. The car did not have handicapped plates nor a handicapped placard. Tardio exited his police vehicle and approached the green Ford. Defendant was in the driver's seat, and a passenger, Lisa Parker, was in the back seat. Tardio asked defendant if he had a handicapped placard. Defendant responded he did not, but that he parked there because one of his passengers, who had gone into the convenience store, had a bad back.
Tardio testified that while he was speaking with defendant, a backup officer, Patrolman Major, arrived with a narcotics canine. Tardio then asked defendant to step out of the vehicle and walk to Major.
Tardio began to speak to Lisa Parker. While doing so, her sister Deborah came out of the convenience store. Tardio was familiar with all three individuals and had "several dealings" with them in the past. Once Tardio identified all the vehicle's occupants, he contacted dispatch to run a search for warrants. Upon learning there were outstanding warrants for Deborah Parker, Tardio requested a female officer be sent to search her and assist in her arrest. Because the BBPD had no female officers on duty at the time, one was dispatched from the Asbury Park Police Department. Tardio testified she arrived about two minutes later.
While waiting for the female officer, and as she was arriving, Tardio spoke with defendant and informed him the BBPD had received information he was dealing drugs. Defendant denied the allegations. Tardio advised defendant that Major was going to do a canine search of the exterior of the vehicle. Major walked the dog around the outside of the vehicle on a leash. The canine sat by the trunk of the Ford, positively indicating the presence of narcotics.
Tardio informed defendant the canine sniff yielded a positive indication for narcotics and that the police were going to tow the car and apply for a warrant to search it. Tardio also told defendant that rather than have his vehicle impounded, he could consent to its search. Defendant declined to consent, and a tow truck was summoned.
Approximately ten minutes later, as the tow truck was arriving, defendant stated that he did not want to have his car taken away and that there "could be some prescription medication in the trunk." Tardio told defendant he could be arrested if it was not in the prescribed bottles. Defendant then verbally consented to the search. He also signed a consent form acknowledging, among other things, that he had the right to refuse consent, and that he was "giv[ing] this permission voluntarily of [his] own free will without coercion, fear, or threat." The police searched the trunk, and pill bottles containing Oxycodone and Xanax, and a packet containing suspected heroin, were recovered. Defendant was charged with possessing the drugs, and the handicapped parking violation.
In a January 13, 2015 oral opinion, the motion judge determined that defendant's initial detention was lawful, as was the ensuing warrant search on the vehicle's occupants. However, the judge found that nothing about the vehicle at that particular time and place gave rise to reasonable suspicion for the canine search. The judge also found the consent defendant gave for the vehicle search was involuntary. Accordingly, the court suppressed the drug evidence.
The State moved for reconsideration, which the court denied. In a written opinion, the judge reasoned that the State did not meet its burden of proving that the dog sniff was conducted within the time necessary to handle defendant's parking violation because it did not offer any evidence as to how much time would be reasonable to handle that violation. The judge also found the police lacked probable cause to believe that, at the time and place the dog sniff was conducted, defendant possessed CDS. As a result, he concluded the "police without lawful probable cause, held defendant and requested his consent to search."
II.
On appeal, the State argues that:
THE TRIAL COURT GRANTED DEFENDANT'S MOTION TO SUPPRESS BASED UPON AN INCORRECT APPLICATION OF NEW JERSEY LAW GOVERNING CANINE SNIFFS AND CONSENT SEARCHES.
The Supreme Court has explained the standard of review applicable to our consideration of a trial judge's fact-finding on a motion to suppress:
We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Deference to those findings is particularly appropriate when the trial court has the "'opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Ibid. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo." State v. Vargas, 213 N.J. 301, 327 (2013).
[State v. Watts, 223 N.J. 503, 516 (2015) (second alteration in original).]
An appellate court remains mindful not to "disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Rather, we reverse only when the court's findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
The stop of a motor vehicle is lawful if the authorities have a reasonable and articulable suspicion that violations of motor vehicle or other laws have been or are being committed. State v. Carty, 170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351 (2002). Here, defendant concedes that Tardio properly stopped him to issue a ticket for parking in a handicap-designated spot without proper authorization, in violation of N.J.S.A. 39:4-138o and N.J.S.A. 39:4-197(3)c. Additionally, citing State v. Smith, 134 N.J. 599, 610-11 (1994), defendant acknowledges that Tardio was permitted to order him out of his car without any particular concern for safety not present in every traffic stop.
"[W]hen the reasonable inquiries by the officer related to the circumstances that justified the stop 'give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'" State v. Baum, 199 N.J. 407, 424 (2009) (second alteration in original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). Here, Tardio had prior dealings with all the vehicle's occupants, and he had also arrested defendant for a narcotics offense in 2012. Consequently, we determine Tardio was justified in briefly detaining defendant and the others pending a warrant check, which revealed outstanding warrants for Deborah Parker. A female police officer was then called to respond, and she arrived in approximately two minutes. Contrary to the judge's written findings on the reconsideration motion, we find nothing in the record to suggest that the use of the drug-sniffing dog, upon or shortly after the female officer's arrival, unreasonably delayed the motor vehicle stop.
See Rodriguez v. United States, 575 U.S. ___, ___, 135 S. Ct. 1609, 1611, 191 L. Ed. 2d 492, 495 (2015) (noting that "[b]eyond determining whether to issue a traffic ticket, an officer's mission [during a traffic stop]. . . [t]ypically. . . [includes] . . . determining whether there are outstanding warrants against the driver . . . .").
We acknowledge that the exact timing of events is unclear from the record. However, referencing the time that defendant executed the consent form, the State argues in a footnote in its brief that less than twenty-eight minutes elapsed between the initial stop and the canine sniff. Defendant does not dispute this contention.
However, on the motion to suppress, the judge initially concluded that the officers lacked a reasonable suspicion that defendant possessed drugs or was involved in narcotics activity at the time and place of the stop. We share that conclusion.
We have held that "[t]he test of a justifiable use of a drug-sniffing dog is reasonable suspicion - the same test applicable to justify a request for consent to search." Elders, supra, 386 N.J. Super. at 228; State v. Cancel, 256 N.J. Super. 430, 435 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993). Moreover, "conducting a dog sniff [does] not change the character of a [Terry] stop that is lawful at its inception and otherwise executed in a reasonable manner," because it "generally does not implicate legitimate privacy interests." Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S. Ct. 834, 837-38, 160 L. Ed. 2d 842, 847 (2005); see also Cancel, supra, 256 N.J. Super. at 434-37. "Indeed, an officer in a lawful investigatory stop may conduct a dog sniff even if it 'prolongs the stop' to a reasonable extent needed to complete the dog sniff procedure, so long as the officer has 'reasonable suspicion' of drug possession." State v. Lezette, 441 N.J. Super. 1, 28 (App. Div. 2015) (citing Rodriguez, supra, 575 U.S. at ___, 135 S. Ct. at 1615, 191 L. Ed. 2d at 499 (emphasis added); State v. Baum, 393 N.J. Super. 275, 290 (App. Div. 2007), aff'd as modified, 199 N.J. 407 (2009)).
Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889, 911 (1968).
"In determining whether reasonable suspicion exists, a court must consider the totality of the circumstances — the whole picture." State v. Stovall, 170 N.J. 346, 361 (2002) (citations omitted). "[A] reviewing court must decide if the officer's observations, in view of the officer's experience and knowledge, taken together with rational inferences drawn from those facts, warrant a limited intrusion upon the individual's freedom." Ibid. Informant tips are included in the "totality of the circumstances" analysis. Id. at 361-62.
In the present case, Tardio testified on cross-examination:
Q. So when you're speaking with Miss Parker and [defendant], there is no indication that either one of them is high.
A. No.
Q. You don't make observations that they have red eyes?
A. No.
Q. That they're slurring their speech?
A. No.
Q. You don't think anyone has just taken drugs in that vehicle, correct?
A. Correct.
Q. Okay. You don't see any drugs in plain view?
A. Correct.
Q. You don't see any drug paraphernalia in plain view?
A. Correct.
Q. So there's really no indication whatsoever that there is narcotics activity happening at that moment?
A. Correct.
Q. And, in fact, there is no indication there's any criminal activity happening in that moment?
A. Correct.
Q. And that information you received before, no one told you that on May 3[,] 2013, in the Quick Chek parking lot, that [defendant] would be there dealing drugs, correct?
A. Correct.
Simply put, although Tardio had previously received information from both an identified and an anonymous informant that defendant was a drug supplier, there was no indication at the time Tardio ordered the canine sniff that defendant had drugs in the vehicle or was otherwise engaged in criminal activity. Moreover, nothing occurred after the stop that gave rise to any suspicion that the vehicle's occupants were engaged in drug activity. Baum, supra, 199 N.J. at 424. The motion judge properly determined that the officers lacked reasonable suspicion to conduct the canine sniff. To hold otherwise would subject defendant to a canine sniff of his vehicle at any time and at any location, based simply on the officer's information about defendant's prior drug dealing. We do not construe the reasonable suspicion standard so broadly.
Pertinent here, when police request consent to search during a motor vehicle stop, they must have a reasonable and articulable suspicion that the search will produce evidence of criminal wrongdoing. Carty, supra, 170 N.J. at 635; State v. Thomas, 392 N.J. Super. 169, 188 (App. Div.), certif. denied, 192 N.J. 597 (2007). Without the invalid canine sniff, the police lacked the reasonable suspicion necessary to seek, and obtain, defendant's consent to a search of his trunk. Consequently, there was no lawful basis to validate the consent search or the subsequent seizure of contraband. The motion to suppress was properly granted.
To the extent that the judge on reconsideration identified the appropriate standard as probable cause, we note that the correct standard is reasonable suspicion. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION