January 17, 2018
appeal from the Superior Court, Appellate Division.
Marzarella, Chief Appellate Attorney, argued the cause for
appellant (Joseph D. Coronato, Ocean County Prosecutor,
attorney; Samuel Marzarella, of counsel; Nicholas D. Norcia
and Shiraz I. Deen, Assistant Prosecutors, on the briefs).
C. Bertucio argued the cause for respondent Aharon Atwood
(Hobbie, Corrigan & Bertucio, attorneys; Edward C.
Bertucio, of counsel and on the briefs; Elyse S. Schindel, on
Hartman argued the cause for respondent Shalom Mizrahi
(Kalavruzos, Mumola, Hartman & Lento, attorneys; W. Les
Hartman, of counsel and on the briefs; Jessica A. Wilson, on
J., writing for the Court.
appeal, the Court considers whether a search warrant granted
after police performed an investigatory automobile stop can
retroactively validate the stop and insulate the State from
bearing, in a suppression hearing, the burden of
demonstrating reasonable and articulable suspicion for the
initial seizure of the moving vehicle.
12, 2015, the Lakewood Police Department (LPD) received a
call regarding a disturbance. Sergeants Pederson and Miick of
the LPD responded to the area and conducted a motor vehicle
stop of an automobile driven by defendant Aharon Atwood, in
which co-defendant Shalom Mizrahi was a passenger. According
to the search warrant affidavit, Sergeant Miick observed
Atwood's vehicle pull "over to the side of the road
with a front driver's side head light out, " then
"quickly leave the area as the marked unit was
disputed the basis for the stop, asserting that both
headlights were operational and denying any evasive behavior.
The Mobile Video Recording (MVR), according to defendants,
indicates that Atwood did not commit any motor vehicle
Sergeant Miick activated the overhead lights, Atwood
immediately pulled the vehicle to the side of the road. Both
officers approached the vehicle and questioned defendants
about the disturbance on Ford Avenue. Mizrahi explained that
he had been the victim of a robbery. The officers then
questioned defendants about an apparent marijuana odor
emanating from the vehicle. While questioning defendants,
Sergeant Miick reportedly detected traces of marijuana, in
plain view, on the driver's side floor. The officers
requested an Ocean County Sheriff's K-9 narcotics dog to
respond to the scene and removed defendants from the vehicle.
The K-9 gave a "positive hit" on the vehicle's
trunk. Police impounded the vehicle and placed both
defendants under arrest. Later that evening, Officer Nathan
Reyes of the LPD obtained a search warrant for the vehicle.
Police executed the warrant soon thereafter, uncovering
marijuana and cocaine in the rear interior passenger area of
the car. On August 26, 2015, an Ocean County Grand Jury
handed up an indictment charging each defendant with four
filed a motion to suppress evidence seized "without a
warrant." In response, the State challenged that framing
of the issue and relied on the search warrant to validate the
initial stop. The trial court held a conference with defense
counsel and the State. The parties engaged in substantial
argument regarding the manner in which the motion should
proceed and which party would have the burden at each phase.
The court noted the existence of "warrantless
aspects" to the suppression motion. Based on the
conference, the trial court issued an updated scheduling
order and directed the State to establish the legality of the
"warrantless aspects" of the motion- namely, the
initial motor vehicle stop. Defendants would bear the burden
on any challenges to the validity of the subsequent search
day of the suppression hearing, instead of presenting proofs
to establish the legality of the stop, the State again
requested that the court shift the entire burden to the
defense. The trial court ordered the proceeding to begin with
the State having the initial burden of proof. The State
announced that it would not go forward with evidential
proceedings. The court admonished the State and ordered that
it begin with the presentation of testimony. The State called
no witnesses. Finding that the State had failed to meet its
burden, the court granted defendants' motion to suppress.
The court suppressed all evidence seized-including the
evidence seized pursuant to the search warrant under the
"fruit of the poisonous tree" doctrine.
State filed a motion for leave to appeal to the Appellate
Division, which promptly denied that motion. The Court
granted the State leave to appeal. 229 N.J. 255 (2017).
Search warrants are prospective in nature-they authorize the
taking of action. A later-obtained search warrant does not
retroactively validate preceding warrantless conduct that is
challenged through a suppression motion focused on the
legitimacy of the seizure that gave rise to a later search.
The State must bear the burden of proving the legitimacy of
the seizure that led to a later warrant and search-in this
case the stop.
Motor vehicle stops are seizures for Fourth Amendment
purposes. An officer may stop a motor vehicle only upon
articulable and reasonable suspicion that a criminal or motor
vehicle violation has occurred. Before trial, a defendant
claiming to be aggrieved by an unreasonable search or seizure
may apply to suppress the evidence seized, whether the search
or seizure was executed with a warrant or constitutes a
warrantless search. R. 3:5-7(a). (pp. 11-12)
proper mechanism through which to explore the
constitutionality of warrantless police conduct is an
evidentiary hearing. At evidentiary hearings, the State
presents witnesses to substantiate its basis for the
challenged warrantless conduct, and the defense is afforded
the opportunity to confront and cross-examine the State's
witnesses. N.J.R.E. 104 hearings provide an opportunity to
probe adverse evidence through cross-examination, and New
Jersey courts have recognized the importance of the ability
to question witnesses in case of factual disputes. (pp.
Here, there was clearly a dispute as to material facts, and
that factual dispute directly related to whether defendants
were in compliance with the traffic code. The trial court
properly directed that an evidentiary hearing be held in
order for the State to satisfy its burden of proving that
reasonable and articulable suspicion supported the
warrantless seizure of defendants' moving vehicle. At the
hearing, the State chose not to present any witnesses to
justify the investigatory stop that preceded the application
for a search warrant. But because the warrantless conduct of
seizing defendants' car was presumptively unreasonable
and therefore invalid, the burden remained on the State to
establish by a preponderance of the evidence that there was
no constitutional violation. The State had to prove the
reasonable and articulable suspicion to justify the initial
stop. The statements in the warrant affidavit were not enough
to carry that evidentiary burden. Defendants were entitled to
cross-examine the officers who made those statements to test,
among other things, the officers' vision and perspective
in observing the perceived traffic violation, as well as
whether the MVR conflicts with the officers' account. The
warrant affidavit is not a substitute for the officers'
testimony and therefore did not suffice to justify the stop.
4. On a
motion to suppress evidence for which a warrant was obtained,
the trial court's review is limited to the information
contained within the four corners of the supporting
affidavit, as supplemented by sworn testimony before the
issuing judge that is recorded contemporaneously. Here, the
State properly identified the history leading up to the
request for a search warrant in its affidavit. Context is
important and helpful to the examining judge. Moreover, in a
challenge to the validity of a search warrant, reviewing
courts consider significant omissions from affidavits in
assessing whether the warrant was supported by probable
cause. That does not mean, however, that the grant of a
forward-looking warrant can validate actions already taken.
The State must provide evidence to support the reasonableness
of the suspicion that led to the stop that can be tested
through the adversarial process. That process would be
defeated if the grant of a warrant could retroactively
sanction a warrantless seizure. The trial court here afforded
to the State ample opportunity to support the stop and
scheduled a motion hearing for the determination of
reasonable suspicion. Because the State presented no other
evidence, the State did not carry its burden to prove the
validity of the stop. (pp. 15-18)
Here, there is no evidence that defendants' car would
have been searched if not for the unsupported stop. Without
the stop, the officers would not have smelled marijuana,
would not have called for a canine sniff, and would not have
sought a warrant. The search was unquestionably incident to
the stop, and the evidence obtained through the search was
thus subject to suppression. (pp. 18-19)
order of the trial court is AFFIRMED.
JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE's
lawful, an automobile stop must be predicated on
"specific and articulable facts giving rise to
reasonable suspicion that defendant had committed motor
vehicle violations." State v. Robinson, 228
N.J. 529, 548 (2017). In a suppression motion hearing
challenging a moving stop, "[t]he State has the burden
of proof to demonstrate by a preponderance of the evidence
that the warrantless seizure was valid." State v.
O'Neal, 190 N.J. 601, 611 (2007).
contrast, a defendant bears the burden of proof when
challenging evidence gathered pursuant to a validly issued
search warrant. See, e.g., State v. Bivins, 226 N.J.
1, 11 (2016) ("[W]hen a search is based on a warrant,
the search is presumptively valid. When contesting the search
at a suppression hearing, the defendant must prove that the
warrant was based on insufficient probable cause ...