Illegal “prolong defendant’s roadside detention” and a police dog sniff his vehicle for drugs
State v. Rodriguez New Jersey Appellate Division May 21, 2019 (Not Approved for Publication)
Submitted by New Jersey Criminal Layer, Jeffrey Hark
Issue: How long can the police keep a motor vehicle driver at a motor vehicle stop for a mere equipment violation?
The following facts are derived from the motion record. On March 16, 2016, at about 10:15 p.m., Vineland Police Officer James Day observed a 2005 Toyota Avalon with its driver’s side rear brake light not operating. Defendant was driving the car, which was registered to his girlfriend. Officer Day pulled the car over due to the traffic violation. When Day approached the car to speak with the driver, he recognized defendant.1 Officer Day told defendant why he pulled him over, and defendant acknowledged the brake light was out. Defendant provided Officer Day his license, registration, and proof of insurance. The officer observed the interior of the vehicle using his flashlight but did not see anything suspicious. Officer Day did not smell an odor of CDS, and defendant was cooperative through the conversation. At that point, two additional officers arrived on the scene as backup.
Officer Day performed a driver’s license check and a warrant check. Defendant’s license was valid, and there were no warrants out for his arrest. At some unspecified point during the stop, Sergeant Shaw arrived with his canine unit, and Officers Selby and Maslanich also arrived.
Officers Selby and Maslanich told Officer Day that confidential informants had told them that defendant was “currently selling large quantities of heroin and cocaine” in Vineland. At the suppression hearing, Office Day was unable to recall anything more specific concerning his conversation with those two officers. Neither officer was called to testify at the suppression hearing. However, during Day’s testimony, the prosecutor asked him about a warrant affidavit he had signed the day after the stop, and the affidavit was introduced in evidence.
After receiving the information from Selby and Maslanich, Officer Day asked defendant for his consent to search the car. Defendant responded, “what does that have to do with my brake light being out?” and refused to consent. After defendant declined consent to a search, Sergeant Shaw performed a canine “sniff” test around defendant’s vehicle, searching for evidence of narcotics. Sergeant Shaw told Day that the dog “hit,” indicating a positive reaction to narcotics, near the front driver’s side headlight.
Law at issue:
In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the Supreme Court drew a clear line of demarcation between a dog sniff that prolongs an otherwise-routine traffic stop and one that does not prolong the stop. If a police officer detains a suspect for a longer time than is reasonably required to complete the traffic-related inquiry, the delay requires a separate justification apart from the alleged traffic infraction.
“An officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Id. at 1615. “The critical question . . . is not whether the dog sniff occurs before or after the officer issues a ticket, . . . but whether conducting the sniff ‘prolongs’—i.e., adds time to—’the stop.'” Id. at 1616 (citation omitted). See State v. Dunbar, 229 N.J. 521, 524 (2017) (adopting the federal standard “barring unnecessary delays for the purpose of canine sniffs”). Thus, if the process of getting the dog to the scene and conducting the sniff prolongs the stop, the court’s inquiry must turn to whether the officer had reasonable suspicion to detain the driver based on facts other than the traffic infraction. State v. Nelson, __ N.J. __, __ (2019) (slip op. at 14); Dunbar, 229 N.J. at 525. (Nelson is the NJ Supreme COurt decision of this month which ruled that so long as the police’s inquiry continues to be ‘reasonably based on articulable suspicion of criminal conduct under a totality of the circumstances’ then the motor vehicle stop can be extended for a drug sniffing dog to be brought to the location even 40 minutes later.
As our Supreme Court recently held, “[i]n determining whether reasonable suspicion exists, a court must consider ‘the totality of the circumstances — the whole picture.'” Nelson, slip op. at 15 (quoting State v. Stovall, 170 N.J. 346, 361 (2002)). Looking at the “whole picture” here, the critical question is, assuming the truth of Day’s statements set forth in the search warrant affidavit, did the information from the CIs give Day or his colleagues the reasonable suspicion necessary to detain defendant for purposes of the dog sniff? Put another way, viewed wholly apart from the traffic infraction, would the CIs’ information have justified the police in detaining defendant in order to conduct an investigatory stop? We conclude it would not.
The CIs told the police that defendant was selling large amounts of drugs in the City of Vineland. One CI told Officer Selby that defendant was “currently trafficking heroin and cocaine within the city of Vineland . . . within the last week of February 2016.” Another CI told Officer Maslanich that defendant “has been and still is selling a large quantity of heroin and cocaine within the city of Vineland” in “the week of March 1 through March 8.” The affidavit described the ways in which the CIs had proven reliable in the past in other cases.
However, the affidavit was devoid of any other details about this case, such as the factual basis for either CI’s knowledge about defendant’s activities, whether defendant was allegedly selling drugs from his car or from a house, a description of the car defendant drove, or whether he was known to transport the drugs himself. 2 See State v. Walker, 213 N.J. 281, 291 (2013); State v. Zutic, 155 N.J. 103, 113 (1998). The CIs’ information did not approach the specificity found sufficient in other cases such as State v. Birkenmeier, 185 N.J. 552, 561 (2006).
Neither Selby nor Maslanich testified at the suppression hearing, so there was no evidence of further details they may have received from the CIs. Unlike Nelson, in which the officers observed multiple suspicious circumstances to corroborate an informant’s tip, here Day did not provide any additional information to support a reasonable suspicion that defendant could have drugs in his car. See Nelson, slip op. at 5-6. For example, Day did not testify that he smelled CDS or that defendant was unaccountably nervous. According to Day, defendant was calm and cooperative.
In upholding the dog sniff, the motion judge relied on State v. Leggette, 441 N.J. Super. 1 (App. Div. 2015), rev’d on other grounds, 227 N.J. 460 (2017). However, in Leggette, and unlike this case, the officer had reasonable grounds to detain defendant based on the strong smell of burnt marijuana on the porch where defendant was standing. 441 N.J. Super. at 28-29. In this case, the bald, uncorroborated assertions by the two CIs were constitutionally inadequate to justify prolonging what was otherwise a routine traffic stop for a broken tail light.
At a hearing on a motion to suppress, the State must prove by a preponderance of the evidence that the stop, or its extension, was reasonable. “The 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); Atwood, 232 N.J. at 437-38. In this case, the State simply failed to meet its proof burden.
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