What Is Required for Police to Conduct A Motor Vehicle Stop and A K-9 Sniff?

State v. Barley

Appellate Docket No.: A-2334-19

Decided April 19, 2021

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In a recent unpublished opinion, the Appellate Division of New Jersey reviewed whether a canine sniff unreasonably delayed a traffic stop, leading to a conviction of an unlawful possession of a firearm.

In State v. Barley, Police observed a black, four-door Nissan sedan operated by defendant with a tinted windshield and front side windows in violation of N.J.S.A. 39:3-75 and tinted-out rear tag cover, in violation of N.J.S.A. 39:3-33, crossing the intersection near Lincoln Avenue. Officer Borelli drove his marked police car to the front of a Dollar General store situated in close proximity to Lincoln Avenue and continued to observe defendant.

When defendant saw Officer Borelli’s car, he lowered the front tinted windows and quickly pulled into the Dollar General parking lot. After parking his vehicle, defendant “ran” into the store and returned to his car shortly thereafter without any shopping bags. Defendant again lowered the front tinted windows and drove off. At 5:25 p.m., Officer Borelli followed the Nissan and initiated a motor vehicle stop based on motor vehicle equipment violations.

After approaching the Nissan on the passenger side and identifying himself, Officer Borelli advised defendant, the registered owner, he was stopped for equipment violations and requested his credentials. Defendant stated, “why the f— are you pulling me over?” He began to sweat after Officer Borelli asked if there was anything illegal in the car. After that, defendant started to breathe heavily and displayed other signs of anxiety in the face of cool weather.

Upon receiving defendant’s documents, Borelli ran his credentials, checked for outstanding warrants, and performed a search of defendant’s criminal history in light of his suspicious behavior. The criminal history search revealed defendant had a history of narcotics distribution offenses. Officer Borelli requested consent to search defendant’s vehicle, which he declined. Defendant called 9-1-1 to request a supervisor come to the scene. At approximately 5:40 p.m., Officer Borelli requested K-9 assistance and twelve minutes later, Sergeant Adam Shaw of the Vineland Police Department arrived with Pikke, his K-9 partner.

The K-9 sniff alerted to the presence of narcotics in the car, leading to a search of the vehicle. The search yielded a loaded .380 semi-automatic handgun in the glove box, a blue sock next to the handgun containing ammunition and one hollow-point bullet, two cell phones, and approximately 55.23 grams, the equivalent of two-and-one-half ounces of marijuana, in a vacuum-sealed bag in the trunk.

An Atlantic County grand jury returned Superseding Indictment Number 19-06-1414, charging defendant with second-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b)(1) (count one); second-degree possession of a firearm while committing a controlled dangerous substance (CDS) offense, contrary to N.J.S.A. 2C:39-4.1(a) (count two); third-degree possession of CDS, marijuana, with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) (count three); fourth-degree possession of drug paraphernalia, Ziploc bags, with intent to distribute, contrary to N.J.S.A. 2C:36-3 (count four); fourth-degree possession of a hollow-point bullet, contrary to N.J.S.A. 2C:39-3(f) (count five); and second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(b) (count six).

Prior to trial, defendant filed a motion to suppress the seized items based on the charges in the original indictment. Defendant argued the K-9 sniff unreasonably prolonged the traffic stop and that the officers lacked reasonable suspicion for requesting the same.  The judge found under the circumstances of the initial traffic violations followed by defendant’s demeanor, the officers had a reasonable suspicion defendant was committing a crime and was able to request a k-9 sniff. The 27 minute period from running defendant’s name to the sniff was not an unreasonable period of time.

The judge denied defendant’s motion and a jury found him guilty of a second degree unlawful possession, sentencing defendant to nine years with three and a half parole ineligibility pursuant to the Graves Act.

Defendant appealed and the Appellate Division affirmed on substantially similar grounds, finding the trial judge did not abuse his discretion.

The importance in this case is understanding what is required for police to conduct a motor vehicle stop and a k-9 sniff.  If police witness a motor vehicle violation, this gives them reasonable and articulable suspicion to lawfully conduct a motor vehicle stop.  Taken further, if police honestly believe they witnessed a motor vehicle stop even though it turns out not to be true, it is still lawful grounds to conduct a motor vehicle stop.

A k-9 sniff can be called at any time during the traffic stop so long as police maintain reasonable suspicion that a crime is being committed.  As long as the k-9 sniff does not unreasonably prolong the traffic stop, the sniff will be reasonable.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case involving motions to suppress. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties. We represent clients in all towns in New Jersey, including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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