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State v. Dickey

November 7, 1996

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THEODORE DICKEY, DEFENDANT-APPELLANT.



On Appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved For Publication by the Court November 8, 1996. As Corrected January 8, 1997.

Before Judges Dreier, D'Annunzio and Newman. The opinion of the court was delivered by Dreier, P.j.a.d.

The opinion of the court was delivered by: Dreier

Defendant, Theodore Dickey, appeals from convictions of first-degree possession of CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1), and third-degree possession of CDS, N.J.S.A. 2C:35-10a(1). Defendant's motion to suppress the cocaine discovered and seized by the police was denied, and he pled guilty to first-degree possession with an expected dismissal of the other possession charge and a recommended maximum term of ten years with a three and one-third-year parole disqualifier. When defendant appeared for sentencing, the Judge downgraded the offense for sentencing purposes to one of the second-degree and sentenced defendant to a seven-year term with a two and one-third-year parole disqualifier, plus the usual fees and penalties. Defendant has served virtually all of his parole disqualifier term, since he had a 434-day jail credit at the time of his April 21, 1995 sentencing. We are informed that he is in a halfway house at the present time.

On February 12, 1994, at 10:36 p.m., defendant was the passenger in an automobile with Ohio license plates traveling on I-95 southbound. The vehicle was clocked by a state trooper at thirty-four miles per hour, twenty-one miles per hour under the speed limit, with the driver making some erratic movements back and forth over the lane divider line. The trooper activated his lights and pulled the car over onto the left shoulder of I-95. Codefendant, Dion Parker, was driving, and defendant was in the front passenger's seat. According to the trooper, both defendant and the driver were extremely nervous. Mr. Parker produced his driver's license but could not find the registration or insurance card for the vehicle. His hands shook as he turned over the license. His eyes were bloodshot and red, although a sobriety test proved negative for evidence of alcohol. Defendant moved aboutin the car and repeatedly turned around. The trooper testified that his suspicions were aroused and that he asked both men to get out of the car. Defendant began pacing and waving his hands. He also made some "laughing-coughing" noises. When the trooper asked about ownership of the vehicle, defendant stated that "Leon" owned the car but that defendant did not know the car owner's last name or address. Defendant first explained that "Leon" was his cousin and then later described him "like a nephew". Neither defendant nor the driver knew Leon's full name or his address. When the trooper asked co-defendant why he was so nervous, co-defendant replied "Nothing is in the ride. I'm not nervous." When the trooper asked co-defendant why he stated that "nothing is in the ride," co-defendant stated that nothing was in the trunk, and then co-defendant stated that he meant the car. Defendants also gave inconsistent stories concerning where they had been earlier in the day. At this time, both defendant and Parker refused to sign a "Consent to Search" form.

The trooper then began a search of the interior of the car, looking for the missing credentials. He also ran a stolen car check, and was informed that there was no report of the car being stolen. At that point, the trooper stated that he asked the two men to accompany him to the State Trooper Barracks in Totowa and that they both complied with his request. A tow truck brought the car to the barracks. Both men were handcuffed in the police car on the way.

Suspecting that drugs might be concealed in the car, the trooper called from the scene of the stop for the assistance of a K-9 officer, who subsequently met the trooper at the station and brought a drug-sniffing dog to examine the trunk of the car. The officer conceded that the two men were not free to leave until the investigation had been completed. At this time, the trooper had been able to acquire the name and address of the owner of the car, but was unsuccessful in his attempt to contact him at his address in Cincinnati, Ohio.

The K-9 officer, accompanied by his dog, arrived at the barracks some time between 1:00 a.m. and 2:00 a.m., between two and one-half and three and one-half hours after the initial stop. While sniffing the car's exterior, the dog began scratching at the trunk, indicating that there was contraband located inside. At this time, probable cause existed for a search of the trunk. The K-9 officer began applying for a search warrant in full view of the two suspects. According to the officer, defendant then told him that he had nothing to hide and would sign a "Consent to Search" form. At 2:45 a.m., after being told that they were free to stop the search if they wished, both defendant and Parker signed the form. The K-9 officer opened the trunk and found a T.W.A. bag containing two brick-like objects, which a field test identified as cocaine. The cocaine found in the trunk weighed approximately two kilograms. The two men were then placed under arrest.

Defendant raises but one issue on this appeal:

POINT I

THE TRIAL JUDGE ERRED IN FAILING TO SUPPRESS THE EVIDENCE AS THE DEFENDANT WAS ILLEGALLY DETAINED PRIOR TO THE DISCOVERY OF THE DRUGS.

The trial Judge separated his analysis into four issues: (i) whether the stop of the car was proper; (ii) whether the search and seizure of the occupants and the vehicle undertaken by the trooper was objectively reasonable; (iii) whether the length of the detention was objectively reasonable; and (iv) (a) whether the use of the narcotics dog constituted a search and (b) whether the consent obtained for the ensuing search was valid.

In addressing these issues, the Judge concluded: (i) the stop was proper, based on the officer's observation that the car was traveling at a slow rate of speed; (ii) the search of the interior compartment of the car was reasonable, since the defendant had not produced any form of registration for the vehicle; (iii) the movement of the vehicle and its occupants to the police barracks was reasonable, as it enabled the officers to ascertain the owner of the car and to determine whether defendant or codefendant was authorized to operate it; and (iv) the sniff was not a search, and the dog's alert gave the police probable cause to search the car; thus the subsequent consent given by defendant was valid.

Defendant here challenges only the reasonableness of the length of the detention. Defendant agrees that a police officer may stop a vehicle that is violating motor vehicle laws. Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); State v. Carter, 235 N.J. Super. 232, 561 A.2d 1196 (App. Div. 1989). Once stopped, the officer may also search the interior of the car for paperwork, such as the registration or an insurance card, if those items are not produced by the driver. State v. Jones, 195 N.J. Super. 119, 478 A.2d 424 (App. Div. 1984). A trunk, however, may not be opened without probable cause to search or absent valid consent. State v. Patino, 83 N.J. 1, 12, 414 A.2d 1327 (1980).

Under both the United States and New Jersey Constitutions, a police officer has the authority to detain individuals without a warrant on less than probable cause. In order to do so lawfully, the police must have reasonable and articulable suspicion that a person has been engaged, or is about to engage, in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Davis, 104 N.J. 490, 504, 517 A.2d 859 (1986). Generally, the proper inquiry for determining the constitutionality of a search and seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent. State v. Kennedy, 247 N.J. Super. 21, 588 A.2d 834 (App. Div. 1991). The facts of our case gave the troopers such a reasonable suspicion. Defendant and the driver had given inconsistent stories concerning where they had been earlier in the day, the claimed permissive use of the vehicle was dubious at best, and the extreme nervousness of the men, with volunteered references to there being nothing in the trunk, all presented an articulable suspicion of illegal activity in relation both to the possession of the car and to the contents of the trunk.

The question here is whether we can sustain the two and one-half to three and one-half hour detention period between the initial stop and the time probable cause to search arose as a result of the dog's actions. The United States Supreme Court has declined to "impose...[a] rigid time limitation on Terry stops." United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605, 615 (1985). The test to assess whether a detention is too long to be a valid investigative detention is "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it is necessary to detain the defendant." Id. at 686, 105 S. Ct. at 1575, 84 L. Ed. 2d at 616. Another factor to consider is "whether the police are acting in a swiftly developing situation, [because] in such cases the court should not indulge in unrealistic second-guessing." Ibid. We also must consider that the detention of the vehicle and of defendant may stand on different grounds. We note that the detention of defendant for the extended period did not lead in any material way to the discovery of the drugs. He made no incriminatory statement during his detention.

The issue as it relates to detention of the person is discussed at length in LaFave, Search and Seizure, § 9.2(f) (3d ed. 1996):

There is no general rule that the detention may continue so long as the reasonable suspicion giving rise to the stop remains, for if this were the rule some stops could be continued indefinitely. Rather, as the Supreme Court has repeatedly stressed, it must be asked whether the police are diligently pursuing a means of investigation which is likely to resolve the matter one way or another very soon and whether it is rather essential to the investigation that the suspect's presence be continued during the interval. This, in turn, may depend upon such things as the relative seriousness of the offense being investigated and whether the police are inching closer to having probable cause for arrest....

[Id. at 65-67 (footnotes omitted).]

Defendant relies on United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), to support the suppression of the cocaine obtained by the police in the present case. In Place, defendant's behavior first raised the suspicions of law enforcement officers in the Miami Airport. After defendant left Miami on route to New York, the authorities in Miami discovered discrepancies in the address tags on his luggage and alerted New York authorities. DEA agents detained defendant when he arrived at La Guardia airport. Id. at 698-99, 103 S. Ct. at 2639-40, 77 L. Ed. 2d at 115. They spoke with defendant and asked him to produce identification, which he did. Ibid. DEA agents ran a computer check that disclosed no offenses. They asked defendant to consent to a search of his luggage. When he refused, they seized his luggage. The agents told defendant that they were going to take his luggage to a federal Judge to get a search warrant and that he was free to accompany them. Defendant declined to do so, and some ninety minutes later, the police subjected it to a sniff test by a trained narcotics detection dog. Ibid.

The Place Court held that the ninety minute detention was excessive, amounted to an unlawful detention, and was prohibited by ...


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