NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2958-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DWIGHT M. NELSON,
a/k/a NELSON DWIGHT,
Defendant-Appellant.
__________________________________
Submitted June 1, 2017 – Decided August 15, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 15-
02-0113.
Joseph E. Krakora, Public Defender, attorney
for appellant (Amira Scurato, Assistant Deputy
Public Defender, of counsel and on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Meredith L. Balo,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant pleaded guilty to first degree possession of
marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), in a
quantity over twenty-five pounds, N.J.S.A. 2C:35-5b(10)(a), to be
treated as a second degree offense for the purpose of sentencing.1
Consistent with the terms of the plea agreement, the court
sentenced defendant to a term of six years with twenty-seven months
of parole ineligibility and imposed the mandatory fines and
penalties.
Pursuant to Rule 3:5-7(d), defendant now appeals from the
trial court's order denying his motion to suppress the marijuana
that formed the evidential basis for his conviction. The New
Jersey State Police (NJSP) arrested defendant and impounded his
car after a sniff-search conducted by a canine unit that was
brought to the scene of the motor vehicle stop. Defendant argues:
(1) the NJSP did not have a reasonable articulable suspicion to
stop his car or conduct the sniff-search; and (2) even if the
1
At the plea hearing, the prosecutor stated: "Mr. Nelson will
plead guilty to . . . Count 2 of the indictment, a crime of the
first-degree amended to a crime of the second-degree for sentencing
purposes." (Emphasis added). This phraseology implies defendant
pleaded guilty to a second degree offense. To avoid any ambiguity
or misunderstanding in the future, we suggest the following
language: "Defendant will plead guilty to the first offense of
_______, to be treated as a second degree offense for purposes of
sentencing." We note the trial judge used a version of the
phraseology we suggested in the judgment of conviction.
2 A-2958-15T4
initial motor vehicle stop was lawful, the use of the canine unit
unreasonably prolonged his detention.
We reject defendant's arguments and affirm substantially
based on our Supreme Court's recent decision in State v. Dunbar,
in which a unanimous Court held that police officers do not need
a "particularized reasonable suspicion" to conduct a canine sniff
during the course of a routine traffic stop "provided the canine
sniff does not prolong the stop beyond the time required to
complete the stop's mission." State v. Dunbar, _____ N.J. _____
(2017) (slip op. at 19; 23-24). Based on the motion judge's
factual findings, we conclude the NJSP had a reasonable Title 39
enforcement basis to stop defendant's car. The record also shows
the use of the canine unit did not prolong the stop more than
reasonably required to complete its Title 39 enforcement mission.
We gather the following facts from the record developed at
the evidentiary hearing conducted by the trial court to decide
defendant's motion to suppress.
NJSP Detective Jason Kazan testified that on October 10,
2014, the NJSP received "intelligence" from the Alcohol Tobacco
and Firearm (ATF) that an anonymous source had provided information
that "there would be a vehicle, described the Infinity,
registration, who was driving, carrying a large sum of marijuana."
3 A-2958-15T4
When asked to clarify, Kazan confirmed that the "information"
consisted only of "the make, model, and tag number of the vehicle."
When asked about the driver, Kazan replied: "I believe they
said there was a black male driving at the time. But other than
that, nothing." The ATF anonymous source also stated that the
vehicle would be departing from New York and traveling south on
the New Jersey Turnpike toward Philadelphia. Based on this
information, Kazan and two other NJSP detectives left the NJSP
Cranbury Barracks and "went out in an unmarked vehicle and
attempted to intercept that vehicle on the Turnpike." Kazan
testified that twenty to thirty minutes after leaving the Barracks,
they located an "Infinity FX35 . . . sport utility vehicle" heading
southbound on the Turnpike. It was approximately 6:43 p.m. at the
time. Kazan gave the following account of what occurred next.
Q. What did you do when you found the vehicle?
A. We located the vehicle and conducted a
motor vehicle stop.
Q. And when you stopped the vehicle did [its]
registration match that of the information
given to you by the ATF?
A. Yes, it did.
Q. Did any other information line up with the
tip that you received?
A. The make of the vehicle, the model, and the
occupant.
4 A-2958-15T4
Kazan identified defendant as the driver of the car.
According to Kazan, "when I spoke to Mr. Nelson he was extremely
nervous. He was shaking, trembling, [and] he started to sweat.
The interior of the vehicle was void [of] any kind of belongings
that would indicate that he was traveling from one destination to
another as in personal belongings." Kazan testified that he twice
asked defendant about where he came from and where he was headed,
and defendant changed his "story" the second time. Kazan also
smelled the "overwhelming odor of air freshener" emanating from
the vehicle. He also saw the air freshener product "Febreze" in
several areas of the car. Kazan testified that based on his
experience, air freshener products are commonly used to mask the
smell of raw marijuana.
Kazan asked defendant for permission to search the car when
he saw "two very large bundles" located "in the rear . . . cargo
hold" of the vehicle. Defendant did not consent, so Kazan
requested that a canine unit respond to the scene. Kazan
explained:
Q. And why did you request the canine?
A. I had believed that there was a presence
of narcotics . . . in the vehicle.
Q. Can you discuss what factors went into your
decision?
5 A-2958-15T4
A. There [were] eight factors[.]2
. . . .
It was the initial call received from the ATF.
It was the moving violations that we observed.
His . . . nervous behavior. He was sweating
profusely, trembling hands. The conflicting
trip itinerary that he had provided to us.
Again, . . . the vehicle was void of any kind
of personal belongings, even just a knapsack
for going from one destination to another
especially when you're visiting people. Those
two large bags in the rear cargo hold. His
previous admissions to us that he [had] been
arrested for narcotics, and . . . that
overwhelming odor of that masking agent which
would be air freshener.
Q. Thank you. How long did it take for the
canine to arrive at the scene after it was
called?
A. I believe it was approximately . . . 20 to
30 minutes. I would have to look at the
incident reports just to see that.
Kazan testified that the canine handler "ran his dog around
the vehicle." The dog then alerted the handler to the presence
of narcotics by scratching "the rear cargo area near the bumper."
Kazan considered the dog's reaction as probable cause to arrest
defendant. He next arrested defendant and towed the car to the
Newark Station where it was secured until the court issued a search
warrant to search the interior of the car. A search conducted
2
Because the witness struggled to recall the factors, he reviewed
a copy of the report to refresh his memory.
6 A-2958-15T4
pursuant to the search warrant revealed that the two large bundles
located in the rear of the car contained approximately eighty
pounds of marijuana. Kazan testified that he also cited defendant
for three Title 39 violations: following another vehicle too
closely, N.J.S.A. 39:4-89; unsafely changing lanes, N.J.S.A. 39:4-
88(b); and operating a motor vehicle while in possession of
narcotics. N.J.S.A. 39:4-49.1.
The motion judge found Kazan's testimony credible. The judge
described the initial motor vehicle stop as falling within the
purview of an investigatory or Terry stop,3 which he found was
"justified by a reasonable and articulable suspicion that criminal
conduct was afoot . . . [based on] information from the ATF." The
judge found the information the NJSP received from the ATF
contained very specific details that the detectives visually
corroborated before stopping defendant's car.
Against this record, defendant raises the following
arguments.
POINT I
THE TRIAL JUDGE ERRED IN DENYING THE MOTION
TO SUPPRESS AS THE DETECTIVE DID NOT HAVE
REASONABLE AND ARTICULABLE SUSPICION THAT THE
OCCUPANT OF THE CAR WAS ENGAGED IN CRIMINAL
3
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
7 A-2958-15T4
ACTIVITY, AND THUS THE WARRANT GRANTING
PERMISSION FOR THE SEARCH WAS THE FRUIT OF AN
UNCONSTITUTIONAL ARREST AND SUBSEQUENT
SEARCH. U.S. CONST., AMENDS. IV, XIV; N.J.
CONST., ART. I, PAR. 7.
A. The Tip Had No Known or
Verifiable Source.
B. The Stop was Illegally Prolonged
in Order to Bring in a Canine for a
Drug-Sniff.
Our standard of review of the motion judge's factual findings
is well-settled. We are bound to uphold the motion judge's factual
findings as long as they are supported by sufficient credible
evidence in the record. State v. Gonzalez, 227 N.J. 77, 101
(2016). This deference stems from the motion judge's opportunity
to develop a "'feel' of the case" by personally hearing and seeing
the witnesses testify, something inherently denied to us as
appellate judges. State v. Elders, 192 N.J. 224, 243-44 (2007).
However, "[d]eference ends when a trial court's factual
findings are not supported by sufficient credible evidence in the
record." State v. S.S., ____ N.J. ____, ____ (2017) (slip op. at
27). We also do not defer to the trial judge's legal conclusions.
State v. Gorthy, 226 N.J. 516, 530 (2016). We review legal
decisions de novo. State v. Tate, 220 N.J. 393, 405 (2015).
With these principles in mind, we conclude the motion judge's
factual findings are supported by competent evidence in the record.
8 A-2958-15T4
In particular, we are bound by the judge's credibility findings
as to NJSP Detective Kazan's testimony. However, we disagree with
the judge's legal conclusion that the NJSP had a reasonable basis
to stop defendant's car based exclusively on the anonymous tip
received from the ATF. We reach this conclusion based on our
Supreme Court's recent decision in State v. Rosario, _____ N.J.
_____ (2017), in which the Court reviewed the propriety of an
investigatory stop of a motorist based on an anonymous tip.
In Rosario, a Colts Neck Police Officer received an anonymous
tip that on a particular date the defendant would be selling heroin
from her home and "out of her 'older burg[undy] Chevy Lumina.'"
Id. at 3. The tip included the defendant's home address. The
anonymous caller also stated that the defendant "was making trips
in the Lumina to drop off and pick up heroin from an address in
Jackson Township." Ibid. The officer received this information
"through a 'patrol notice' shared with officers at the beginning
of each shift[.]" Ibid. Four days later, the officer saw a
burgundy Chevy Lumina lawfully parked in front of the address the
tipster gave as the defendant's residence. Id. at 3-4. "[N]either
the lights nor the engine of the Lumina were activated[.]" Id.
at 4.
Based only on this information, the officer parked his marked
police car behind the defendant's car to prevent it from leaving,
9 A-2958-15T4
and proceeded to conduct an investigatory detention. Ibid. The
Rosario Court held that an investigatory detention constitutes a
seizure under the Fourth Amendment because "'an objectively
reasonable person' would feel 'that his or her right to move has
been restricted.'" Id. at 10 (quoting State v. Rodriguez, 172
N.J. 117, 126 (2002)). Under the prevailing facts in Rosario, the
Court was particularly critical of relying on an anonymous tip as
a basis to conduct an investigatory stop.
[A]n anonymous tip, standing alone, inherently
lacks the reliability necessary to support
reasonable suspicion because the informant's
"'veracity . . . is by hypothesis largely
unknown, and unknowable.'" (quoting
Rodriguez, supra, 172 N.J. at 127-28). The
fact that the tip accurately identified [the]
defendant and her vehicle is of no moment
because a tipster's knowledge of such innocent
identifying details alone "does not show that
the tipster has knowledge of concealed
criminal activity." Florida v. J.L., 529 U.S.
266, 272, 120 S. Ct. 1375, 1379, 146 L. Ed.
2d 254, 261 (2000).
[Id. at 16-17.]
Here, the anonymous tip the NJSP received from the ATF
contained the same type of facially "innocent details" that
standing alone does not show the ATF had knowledge of concealed
criminal activity. We also expressly reject the notion that
because the anonymous tip came from a federal law enforcement
agency it should be viewed as inherently clothed with a mantle of
10 A-2958-15T4
reliability. The anonymity of the informant and the failure to
describe how the information was obtained are the key factors that
undermine the tip's reliability. All we know here is that an
unknown representative of the ATF passed on to the NJSP facially
innocent details about a motor vehicle travelling on the Turnpike
on a particular date and time. Standing alone, this information
"inherently lacks the reliability necessary to support reasonable
suspicion." Ibid.
Furthermore, as was the case with the defendant in Rosario,
here defendant was also not free to leave once the NJSP directed
him to stop his car. As the Court in Rosario noted: "'[A]s a
practical matter, citizens almost never feel free to end an
encounter initiated by the police.'" Id. at 12 (quoting Rodriguez,
supra, 172 N.J. at 129). "Rather, such police activity reasonably
would, and should, prompt a person to think that she must stay put
and submit to whatever interaction with the police officer was
about to come." Ibid.
The key difference between the facts in Rosario and the
controlling facts here is the motion judge's acceptance of Kazan's
testimony about the Title 39 violations. Specifically, the judge
found:
At approximately 6:43 p.m., [Kazan and the two
other NJSP Detectives] observed a vehicle
matching the description provided[] [by the
11 A-2958-15T4
ATF] . . . traveling the speed limit, but
failing to maintain its lane and failing to
keep a safe following distance behind the
vehicle in front of it. The troopers then
initiated a motor vehicle stop.
The record shows defendant was issued three traffic summonses that
correspond to these Title 39 violations.
Once the propriety of the stop is established, law enforcement
agents do not need a "particularized reasonable suspicion" to
conduct a canine sniff. State v. Dunbar, supra, slip op. at 19;
23-24. The Court in Dunbar adopted the United States Supreme
Court's holding in Illinois v. Caballes, 543 U.S. 405, 408, 125
S. Ct. 834, 837, 160 L. Ed. 2d 842, 847 (2005), which held that
"a dog sniff would not change the character of a traffic stop that
is lawful at its inception and otherwise executed in a reasonable
manner, unless the dog sniff itself infringed [upon the
defendant's] constitutionally protected interest in privacy."
State v. Dunbar, supra, slip op. at 17-18. The Court in Dunbar
also made clear, however, that "an officer may not conduct a canine
sniff in a manner that prolongs a traffic stop beyond the time
required to complete the stop's mission, unless he possesses
reasonable and articulable suspicion to do so." Id. at 25 (citing
Rodriguez v. United States, 575 U.S. ___, __, 135 S. Ct. 1609,
1616, 191 L. Ed. 492, 500-01 (2015)).
12 A-2958-15T4
Here, the motion judge found defendant refused to sign a
consent form permitting the NJSP to search his car at approximately
7:21 p.m. Kazan thereafter requested a canine unit to respond to
the scene at approximately 7:27 p.m. The canine unit arrived at
7:58 p.m. The NJSP handler deployed the trained police dog "Katie"
to conduct an exterior sniff-search of the car for the presence
of narcotics. Katie alerted her handler of the presence of
narcotics in the rear cargo door of defendant's car. Kazan
arrested defendant on possession of an unknown quantity of a
controlled dangerous substance. The entire canine sniff-search
took approximately thirty-seven minutes. Under these
circumstances, the motion judge found the canine search did not
unreasonably prolong the Title 39 enforcement stop. Mindful of
the Court's holding in Dunbar, we agree.
Affirmed.
13 A-2958-15T4