June 17, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
STEVEN CARR, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-12-3310.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief).
Before Judges Nugent and Haas.
Defendant Steven Carr appeals the denial of his motion to suppress five bags of marijuana that police seized from beneath the passenger seat of the car he had occupied. He contends the police unreasonably detained him during a traffic stop. Having considered his arguments in light of the record and controlling law, we affirm.
The only witness to testify at the suppression hearing was Gloucester City Police Lieutenant Brian Morrell, an eleven-year police officer who had spent the previous six years supervising all other detectives. His "main focus investigation-wise [was] on narcotics complaints." He and his partner, Detective Carlos Depoder, were dressed in plain clothes and in an unmarked car when they encountered defendant at approximately 6:41 p.m. on the evening of March 24, 2010.
The officers saw two cars stopped side-by-side on Orlando Avenue, a two-lane street in a residential neighborhood where street parking was available and most residences had driveways. The cars' engines were running, their brake lights were on, and the cars were blocking traffic. Due to this motor vehicle violation, the officers activated the strobe lights on their car, parked it, and walked toward the other cars.
As Lieutenant Morrell approached the cars he observed other motor vehicle violations. The car to his right, occupied by three women, had objects hanging from the rearview mirror that obstructed the driver's view. The other car, occupied by defendant and another man, had no front license plate and defendant, seated in the passenger seat, was not wearing his seatbelt.
Lieutenant Morrell recognized both men. He had previously stopped the driver for motor vehicle violations, and the driver had been the subject of complaints from a school resource officer earlier that week. The previous day, the Lieutenant's department had had received a complaint that defendant "was believed to be selling narcotics from his residence and from vehicles that would come to that residence."
Lieutenant Morrell asked the driver of the car occupied by the women why she was blocking the street. She replied that defendant had stolen money from her friend and she and the other women were there to retrieve it. At about the same time, defendant told Detective Depoder, who had walked to the car occupied by the two men, that he, defendant, "had borrowed money from one of the girls and was there to return it."
Suspecting that a narcotics transaction was taking place, the officers requested a K-9 officer to respond to their location so that a drug-sniffing dog could "conduct an open-air sniff of the exterior of the vehicle." It took approximately two minutes for the K-9 officer and dog to arrive on the scene. The dog reacted positively to the car defendant had occupied, but negatively to the car occupied by the women. When the dog reacted positively, defendant and the driver were not in the car, but were standing outside.
Lieutenant Morrell informed defendant and the driver that the dog "had alerted to the odor of narcotics inside their vehicle which means that there are narcotics in that vehicle presently or have been recently." In response, defendant said that he had five bags of "weed" under the seat. Lieutenant Morrell retrieved from beneath the passenger seat a plastic bag containing five individual blue zip lock baggies, each containing a green leafy vegetation. The officers placed defendant under arrest.
Following defendant's indictment by a Camden County grand jury charging him with fourth-degree possession with intent to distribute a controlled dangerous substance, marijuana, N.J.S.A. 2C:35-5a(1), he moved to suppress the drugs. Judge Louise DiRenzo Donaldson denied the motion.
In her oral decision, Judge Donaldson found that that the officers lawfully detained the cars' drivers and passengers after observing the motor vehicle violations, and that the routine questions the officers asked the drivers and defendant did not violate their Fourth Amendment rights. The judge further reasoned that when the cars' occupants made contradictory statements about why the drivers had stopped, particularly after one of the drivers linked defendant to a theft, the officers were justified in expanding the scope of their inquiries. The judge concluded that, considering the all of the circumstances known to the officers, including the complaints Lieutenant Morrell had received about defendant selling drugs, the officers' decision to have a drug sniffing dog quickly transported to the scene was a reasonable and lawful expansion of their initial investigation; and when defendant voluntarily disclosed the location of the contraband, the police lawfully seized it.
Following the denial of his suppression motion, defendant pled guilty to the charge in exchange for the State recommending two years of non-custodial probation and dismissing an unrelated disorderly persons offense. The parties also understood the court would impose appropriate fines, penalties and assessments. Defendant reserved his right to appeal the denial of his suppression motion. On October 28, 2011, the court sentenced defendant in accordance with the terms of the plea agreement. This appeal followed.
Defendant makes the following argument:
THE JUDGE BELOW ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE AS THERE WAS NO REASONABLE SUSPICION NOR PROBABLE CAUSE TO SUSPECT THAT THE DEFENDANT WAS IN POSSESSION OF DRUGS AND THE ENSUING SEIZURE OF HIS PERSON WAS IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. (1947) ART. I, PARA. 7.
When reviewing a trial court's decision to deny a motion to suppress evidence, "an appellate court 'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). An appellate court's review of a trial court's legal conclusions, however, is plenary. Id. at 45.
Defendant recognizes that his initial detention and the officer's initial investigation into the traffic violations were lawful. He contends the police did not have reasonable suspicion to detain him, even briefly, beyond the time that was necessary "to ask some basic questions about the traffic issues[.]" We disagree.
"[A]ny automobile stop, however brief, must satisfy the Fourth Amendment's basic requirement of 'reasonableness.'" State v. Hickman, 335 N.J.Super. 623, 634 (App. Div. 2000). Subject to that requirement, when police officers lawfully stop vehicles for traffic violations, "the police may question the occupants, even on a subject unrelated to the purpose of the stop, without violating the Fourth Amendment, so long as such questioning does not extend the duration of the stop." Id. at 636. The police may question not only the driver, but also "the occupants of the car . . . without any additional justification." Ibid. "If, during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances 'give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'" State v. Dickey, 152 N.J. 468, 479-480 (1998) (quoting United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir.), cert. denied, 516 U.S. 936, 116 S.Ct. 348, 133 L.Ed.2d 245 (1995)) (alteration in original). Nevertheless, "a continued detention may amount to an arrest if it is longer than needed or if it becomes 'more than minimally instrusive[.]'" State v. Baum, 199 N.J. 407, 425 (2009) (quoting Dickey, supra, 152 N.J. at 478).
Here, the initial detention of the cars and their occupants was justified by the traffic violations. There was nothing inappropriate about Lieutenant Morrell and Detective Depoder questioning the drivers and occupants about why they were stopped in the middle of the street and what they were doing. When one of the drivers accused defendant of theft and defendant claimed he had borrowed money from one of the women, the officers knew defendant had money that was not his. That information, considered in the context of the complaints the officers had received about both the driver and defendant selling drugs, justified the officers' request for a drug-sniffing dog.
Contrary to defendant's contention, the police did not unduly prolong his continued detention. According to Lieutenant Morrell's undisputed testimony, the K-9 unit appeared on the scene within approximately two minutes of Morrell requesting it. It is unlikely that Morrell could have finished writing traffic summonses within that time. Defendant's continued detention under those circumstances can hardly be characterized as unreasonable. Cf., Baum, supra, 199 N.J. at 425 (finding nothing excessive in an encounter following a motor vehicle stop that lasted approximately twenty-six minutes).
Defendant also argues that the police did not have a reasonable suspicion to have a drug-detection dog sniff the vehicle. We are unpersuaded by that argument.
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." State v. Elders, 386 N.J.Super. 208, 228 (App. Div. 2006), aff'd in part and rev'd in part, 192 N.J. 224 (2007); State v. Cancel, 256 N.J.Super. 430, 435 (App. Div. 1992) (explaining that evidence that flights from Texas and Arizona were being used increasingly to transport marijuana into New Jersey was sufficient to satisfy the modest level of reasonable suspicion needed to justify the unintrusive use of canines to sniff all luggage on such flights for narcotics), certif. denied, 134 N.J. 484 (1993). Our Supreme Court has not ruled on the issue. In Illinois v. Caballes, however, the United States Supreme Court held that police generally do not require a reasonable, articulable suspicion to justify using a drug-detection canine to sniff a vehicle during a legitimate traffic stop. 543 U.S. 405, 409, 125 S.Ct. 834, 838, 160 L.Ed.2d 842, 847 (2005).
When evaluating whether a police officer had a reasonable suspicion that criminal activity had taken place or was about to take place, a court must "ascribe sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10-11 (1997). "[S]imply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Id. at 11.
In the case before us, two drivers stopped alongside one another in the middle of the street, with their engines running and their brakes on. Lieutenant Morrell learned that money had changed hands after the driver of one car told him defendant had stolen fifty dollars, and defendant told Depoder he had borrowed the money. The Lieutenant, an experienced drug enforcement officer, had received recent complaints that both defendant and the driver of the car defendant was sitting in had been selling drugs defendant from both his home and from cars The totality of those facts and the rational inferences that could be drawn from them when objectively and reasonably viewed in light of Lieutenant Morrell's experience provided Lieutenant Morrell with "the modest level of reasonable suspicion needed to justify the unintrusive use of [a] canine  to sniff [the car]" Cancel supra 256 N.J. Super at 430
Lieutenant Morrell's continued detention of defendant was of relatively short duration His request for the K-9 unit was based on reasonable suspicion and the use of the drug-sniffing dog was unintrusive In view of those circumstances we agree entirely with Judge Donaldson's determination that defendant's continued detention was reasonable Hickman supra 335 N.J. Super at 634