Motion to Suppress Evidence Must Be Reversed Because the Opening of the Car Doors During the Dog Sniff Constituted an Unlawful Search

State of New Jersey v. Nestor Balbi

Docket No. A-2908-20

Decided March 14, 2023

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Court of New Jersey decided the defendant’s appeal from an order denying his motion to suppress evidence after a remand.

The Appellate Court originally remanded the case in a prior decision for the trial judge to make specific factual findings about the movements of the K-9 dog as part of a canine sniff of the defendant’s car to establish probable cause for a search warrant. The trial judge was explicitly instructed to, “address whether the canine sniff was lawful and what effect, if any, an illegal breach of the vehicle’s exterior had on the search and the validity of the search warrant.”

The facts from the August 2020 evidentiary hearing after the case was remanded are as follows: The trial judge heard testimony from the K-9 officer who arrived on scene after being summoned by officers who lawfully stopped the suspect vehicle. The trial judge also viewed a video of the K-9 sniff. The K-9 officer narrated the dog’s movements while the video played, and confirmed the dog alerted on the front passenger door by biting the door handle. The door opened and officer reached out and closed the door. The K-9 officer testified the dog also scratched at the front passenger door pointing to the source of the odor. The K-9 officer testified that the dog never entered the vehicle and that biting, scratching, jumping and/or barking were the dog’s alert signals. The trial judge found the officer was credible, and consistent with the video, the K-9 never entered the vehicle. Thus, the sniff was lawful and the brief opening of the car door had no effect on the search and the validity of the warrant. The trial judge reaffirmed his denial of defendant’s motion to suppress after the remand hearing. Defendant subsequently appealed.

On appeal, defendant contended that the remand judge’s decision denying his motion to suppress evidence must be reversed because the opening of the car doors during the dog sniff constituted an unlawful search. The Appellate Court disagreed with defendant’s argument because the court believed there was sufficient credible evidence in the record to support the judge’s determination that the dog, not the officer, opened the door. The court articulated that the officer’s testimony was consistent with the judge’s review of the motor vehicle recording and there was no evidence in the record to support defendant’s argument that the officer opened the car door. Additionally, nothing in the record supports defendant’s contention that the dog must perform all three actions (bark, bite, and scratch) to constitute an alert sufficient for establishing probable cause to obtain a warrant to search. Therefore, the Appellate Court determined the trial judge properly concluded the K-9 sniff was lawful and the dog’s alert gave rise to probable cause for a warrant to search defendant’s car. As a result, the trial judge did not abuse his discretion in denying defendant’s motion to suppress the drug evidence.

At Hark & Hark, we are experienced attorneys who represent clients in Superior Court for issues like the previously discussed case pertaining to motions to suppress evidence seized as the result of an unlawful search. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.