STATE OF NEW JERSEY VS. DWIGHT M. NELSON(15-02-0113, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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