STATE OF NEW JERSEY VS. JOSE D. GRAHAM (15-12-0766, 16-08-0670 AND 16-10-0801, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-2432-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE D. GRAHAM, a/k/a BOO GRAHAM,
and JOSE DANIEL GRAHAM,

Defendant-Appellant.
___________________________________

Submitted April 9, 2018 – Decided August 9, 2018

Before Judges Accurso and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
Nos. 15-12-0766, 16-08-0670 and 16-10-0801.

Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel S. Rockoff, Assistant
Deputy Public Defender, of counsel and on the
brief).

Gurbir S. Grewal, Attorney General, attorney
for respondent (Regina M. Oberholzer, Deputy
Attorney General, of counsel and on the
brief).

PER CURIAM
 Defendant Jose D. Graham was charged in three indictments

with crimes arising out of three separate incidents occurring in

2015 and 2016. The court denied defendant's motions to suppress

evidence in two of the matters and, after a jury found him guilty

of the charges in one indictment, he pleaded guilty to crimes in

the others. In a single sentencing proceeding, he received an

aggregate twelve-year sentence with a seven-year period of parole

ineligibility.

Defendant appeals from the orders denying his motions to

suppress evidence, and from the sentence imposed in one of the

matters. Based on our review of the record in light of the

applicable law, we reverse one of the court's suppression orders

and defendant's conviction in that matter, and remand for further

proceedings. We also vacate the sentence defendant challenges on

appeal and remand for resentencing.

I.

In 2015, defendant was charged in a six-count indictment1

(2015 indictment) with drug-related offenses arising out of a

September 1, 2015 motor vehicle stop. Defendant moved to suppress

the controlled dangerous substances — marijuana, 3,4

Methylenedioxy-ethylcalthinone and cocaine — seized from his pants

1
Gloucester County Indictment No. 15-12-0766.

2 A-2432-16T2
pocket following the stop. After a suppression hearing, the court

determined the seizure of the drugs was proper under the plain-

view exception to the warrant requirement, and denied the

suppression motion. Defendant proceeded to trial and in April

2016 was convicted by a jury of two counts of third-degree

possession of a controlled dangerous substance, cocaine and 3,4

Methylenedioxy-ethylcalthinone, respectively.

In August 2016, while awaiting sentencing following his

trial, defendant was indicted2 (August 2016 indictment) for one

count of possession of a controlled dangerous substance.

Two months later, defendant was also charged in an indictment3

(October 2016 indictment) with seven drug offenses and four weapons

offenses arising out of a November 28, 2015 motor vehicle stop.

Defendant moved to suppress a handgun seized from the vehicle and

drugs found on his person following the stop, as well as statements

he made to the police after his arrest. The court held a

testimonial hearing and, in a written opinion, denied the motion

finding there was probable cause for the search of the vehicle,

the drugs were recovered during a search incident to a lawful

2
Gloucester County Indictment No. 16-08-0670.
3
Gloucester County Indictment No. 16-10-0801.

3 A-2432-16T2
arrest and defendant's statements were voluntarily made after he

waived his Miranda4 rights.

Defendant subsequently pleaded guilty to third-degree

possession of a controlled dangerous substance, N.J.S.A. 2C:35-

10(a)(1), under the August 2016 indictment, and second-degree

certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1),

under the October 2016 indictment. In exchange for his guilty

pleas, the State agreed to withdraw its motion for a discretionary

extended term sentence, N.J.S.A. 2C:44-3, for his convictions

under the 2015 indictment, and recommend an aggregate sentence not

to exceed seven years with a five-year period of parole

ineligibility under the Graves Act, N.J.S.A. 2C:43-6, on the

charges under the August 2016 and October 2016 indictments.

The court sentenced defendant in accordance with the plea

agreement, imposing a seven-year sentence with a five-year period

of parole ineligibility on the certain persons offense under the

October 2016 indictment and a concurrent three-year sentence on

the possession of a controlled dangerous substance charge under

the August 2016 indictment. The court merged defendant's

convictions for the drug offenses in the 2015 indictment, and

imposed a five-year sentence with a two-year period of parole

4
Miranda v. Arizona, 384 U.S. 436 (1966).

4 A-2432-16T2
ineligibility consecutive to the sentences imposed under the

August 2016 and October 2016 indictments. Defendant's aggregate

sentence on the charges in the three indictments is twelve years

with a seven-year period of parole ineligibility.

Defendant appealed, and presents the following arguments for

our consideration:

POINT I

POLICE IMPERMISSIBLY PROLONGED THE DETENTION
OF [DEFENDANT] AND HIS GIRLFRIEND, WHO WAS
EIGHT MONTHS PREGNANT, DURING WHAT SHOULD HAVE
BEEN A ROUTINE VEHICLE STOP. ACCORDINGLY, THE
COURT ERRED BY DENYING THE MOTION TO SUPPRESS
ALL EVIDENCE FROM INDICTMENT NO. 16-10-
[0]0801.

POINT II

AN OFFICER CONCEDED THAT HE FAILED TO SECURE
A WAIVER OF THE MIRANDA RIGHTS BEFORE
INTERROGATING [DEFENDANT]. ACCORDINGLY, THE
COURT ERRED BY DENYING THE MOTION TO SUPPRESS
[DEFENDANT]'S STATEMENT ON INDICTMENT NO. 16-
10-[0]0801.

POINT III

AFTER OFFICERS REALIZED THAT [DEFENDANT] WAS
NOT THE SUSPECT SOUGHT IN A SHOOTING, THEY
IMPERMISSIBLY PROLONGED HIS DETENTION IN ORDER
TO SEARCH HIM FOR WEAPONS. ACCORDINGLY, THE
COURT ERRED BY DENYING THE MOTION TO SUPPRESS
EVIDENCE FROM INDICTMENT NO. 15-12-[0]0766.

POINT IV

THIS COURT SHOULD REMAND FOR RESENTENCING ON
THE TRIAL CONVICTIONS.

5 A-2432-16T2
 1. The trial court improperly applied
aggravating factor 1 in a straightforward case
of drug possession.

2. The Court improperly found that [defendant]
was a "professional drug dealer," even though
the jury acquitted [defendant] of all intent
to distribute charges.

II.

We first consider defendant's claim the court erred by denying

his motions to suppress evidence seized as a result of the separate

September 1 and November 28, 2015 motor vehicle stops, and

statements he made following the November 28 stop. "When reviewing

a trial court's decision to grant or deny a suppression motion,

[we] 'must defer to the factual findings of the trial court so

long as those findings are supported by sufficient evidence in the

record.'" State v. Dunbar, 229 N.J. 521, 538 (2017) (quoting

State v. Hubbard, 222 N.J. 249, 262 (2015)). "We will set aside

a trial court's findings of fact only when such findings 'are

clearly mistaken.'" Ibid. (quoting Hubbard, 222 N.J. at 262).

"We accord no deference, however, to a trial court's interpretation

of law, which we review de novo." Ibid. (citing State v. Hathaway,

222 N.J. 453, 467 (2015)).

A. The Seizure of Drugs on September 1, 2015

Defendant challenges the court's denial of his motion to

suppress evidence seized on September 1, 2015 after he was ordered

6 A-2432-16T2
to exit his vehicle following a motor vehicle stop, handcuffed,

and an officer saw a plastic bag containing marijuana and pills

in defendant's open pants pocket. Defendant argues the court

erred in finding the search was permissible under the plain-view

exception to the warrant requirement, because the officer's

observation of the plastic bag was the result of an impermissibly

prolonged seizure of defendant following the stop.

Based on the evidence presented at the suppression hearing,

the court found that on August 25, 2015, Paulsboro Police were

dispatched to investigate a shooting where the victim reported

being shot and injured by an individual named Levan Banks. A

complaint-warrant was issued charging Banks with four offenses

related to the shooting. During the investigation, Paulsboro

Patrolman Adam Chiolam was informed Banks was seen driving a black

Dodge Maxum with a specified license plate number.

On September 1, 2015, Chiolam saw a black Dodge Maxum with

the specified license plate number. The front driver's side window

was down, and Chiolam believed he saw Banks behind the wheel of

the vehicle. Chiolam could not immediately pursue the vehicle

because he was investigating another unrelated serious incident

at the time, but he advised the police department by radio of his

observations and the location of the Dodge Maxum.

7 A-2432-16T2
 After completing his investigation of the unrelated incident,

Chiolam patrolled the area he last observed the Dodge Maxum. He

saw the vehicle and again thought he observed Banks driving.

Chiolam effectuated a stop of the vehicle, alerted other patrol

officers by radio that he had initiated a "high risk motor vehicle

stop" and requested assistance.

Chiolam testified he ordered the driver, who was later

identified as defendant, to turn off the vehicle, extend his hands

out of the vehicle, throw the vehicle's keys, exit the vehicle and

stand facing away from Chiolam. The driver was then ordered to

walk backwards toward Chiolam.

The court found that Chiolam waited for back-up, which "came

in the form of Officer [David] Belbin" and other officers. Chiolam

and the other officers approached the vehicle to determine if it

contained any other occupants. While that occurred, Belbin took

control of defendant, "not to arrest him, but to secure him during

the course of the high risk stop."5 Chiolam detected an odor or

marijuana coming from the passenger compartment of the vehicle,

and saw a partially consumed bottle of alcohol and a large butcher

5
The evidence showed defendant was handcuffed by Belbin, and
Belbin intended to conduct a pat-down search of defendant for
weapons. He did not, however, immediately conduct a pat-down
search because he first observed the plastic bag containing
marijuana and pills in defendant's open pants pocket.

8 A-2432-16T2
knife on the vehicle's floor. There were no other occupants in

the vehicle.

While Chiolam made his observations of the vehicle, Belbin

stood next to defendant and saw a plastic bag containing what he

knew to be marijuana and pills in a large open pocket in

defendant's pants.6 Belbin seized the plastic bag from defendant's

pocket. After Chiolam made his observations of the vehicle's

interior, he was informed by one of the officers who recognized

defendant that the driver was not Banks, but instead was defendant.

At the suppression hearing, defendant expressly conceded the

validity of the motor vehicle stop and Belbin's decision to

"temporarily handcuff him" for the purpose of conducting a pat-

down search while Chiolam and the other officers determined if

there were any other occupants in the vehicle. Defense counsel

advised the court defendant "does not challenge [or] think it was

unreasonable for the officers to clear the vehicle for other

individuals who could be armed and dangerous." Defendant further

conceded the video recording of the incident confirmed Chiolam's

belief defendant was Banks when he ordered defendant out of the

6
It was later confirmed the bag contained marijuana, cocaine and
3,4 Methylenedioxy-ethylcalthinone. As noted, a jury convicted
defendant of possession of cocaine and 3,4 Methylenedioxy-
ethylcalthinone.

9 A-2432-16T2
vehicle, and Belbin was properly in the viewing area when he made

his observations of the contents of defendant's pants pocket.

Defendant's singular argument before the court was

suppression of the evidence was required because Belbin's

testimony he could see into the pants pocket was not credible.

More particularly, defendant argued Belbin's position near

defendant did not allow him to see into the pants pocket, and the

pocket was covered with a flap and therefore Belbin could not have

directly looked into the pocket as he alleged. The court rejected

the argument, making findings of fact limited to defendant's sole

contention that Belbin was not credible.

The court found credible Belbin's testimony he was in position

to see the bag, and that the pants pocket was sufficiently large

and open to permit his observations. The court determined the bag

was properly seized under the plain-view exception to the warrant

requirement because Belbin was lawfully in the viewing area,

inadvertently observed the plastic bag and immediately recognized

it contained contraband and evidence of a crime. See State v.

Earls, 214 N.J. 564, 592 (2013) (finding the plain-view exception

to the warrant requirement is established where the officer is

"lawfully in the viewing area," the discovery of the items is

inadvertent and it was immediately apparent what was seen

10 A-2432-16T2
constitutes contraband, evidence of a crime or is "otherwise

subject to seizure").7

The record reveals substantial credible evidence supporting

the court's fact-findings, see State v. Elders, 192 N.J. 224, 243-

44 (2007), and its determination Belbin properly seized the plastic

bag containing the drugs because it was in plain-view. For those

reasons, we affirm the court's order denying the motion to suppress

the evidence seized from defendant's pocket on September 1, 2015.

On appeal, defendant abandons the contention Belbin could not

have seen into defendant's pocket and, for the first time, claims

the seizure was unlawful because Belbin's plain-view discovery of

the plastic bag followed an impermissibly prolonged seizure of his

person following his exit from the vehicle. See Rodriquez v.

United States, 575 U.S. ___, ___, 135 S. Ct. 1609, 1616 (2015)

(finding extending a traffic stop beyond the time reasonably

required to complete the purpose of the stop is unlawful); Terry

v. Ohio, 392 U.S. 1, 20 (1968) (holding a determination of

reasonableness of an investigatory stop requires consideration of

"whether the officer's action was justified at its inception, and

whether it was reasonably related in scope to the circumstances

7
In State v. Gonzales, 227 N.J. 77, 100-01 (2016), the Court
prospectively modified the plain-view doctrine, eliminating the
inadvertence requirement of the prior standard.

11 A-2432-16T2
which justified the interference in the first place"); Dunbar, 229

N.J. at 533-34 (citation omitted) (finding that a police officer

may not conduct "incidental checks . . . 'in a way that prolongs

the stop, absent the reasonable suspicion ordinarily demanded to

justify detaining an individual'"); State v. Coles, 218 N.J. 322,

344 (2014) (finding "the scope of the continued detention must be

reasonably related to the justification for the initial

interference").

We decline to address defendant's argument because it was not

asserted before the motion court, and does not involve

jurisdictional or public interest concerns. See State v. Robinson,

200 N.J. 1, 20 (2009); State v. Arthur, 184 N.J. 307, 327 (2005);

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Moreover, defendant's decision to focus solely on Belbin's ability

to see the plastic bag as the basis for his challenge to the

seizure of the evidence rendered it unnecessary for the motion

court to make the credibility determinations and fact-findings

necessary for resolution of his newly-minted claim there was an

impermissibly prolonged seizure of his person. "Parties must make

known their positions at the suppression hearing so that the trial

court can rule on the issues before it." State v. Witt, 223 N.J.

409, 419 (2015). Here, "[t]he trial court . . . was never called

on to rule on the lawfulness," ibid., of the alleged prolonged

12 A-2432-16T2
seizure of defendant prior to Belbin's plain-view observation of

the plastic bag, and thus the issue "was not preserved for

appellate review," ibid.

B. The Seizure of the Gun and Drugs on November 28, 2015

Defendant next challenges the court's denial of his motion

to suppress evidence seized following a November 28, 2015 stop of

a pick-up truck he drove with his girlfriend as a passenger. More

particularly, following the stop and subsequent positive canine

sniff of his vehicle, the police discovered a handgun under the

vehicle's front seat and controlled dangerous substances in

defendant's possession. The discovery of the gun and drugs

resulted in the seven charges in the October 2016 indictment.

The evidence presented during the suppression hearing showed

that at approximately 9:24 p.m. on November 28, 2015, Mantua

Township Police Department patrolman Cody Moroz stopped the pick-

up truck because it had tinted windows. The court found that

following the stop, Moroz approached the vehicle, defendant

provided his driver's license and girlfriend provided the

vehicle's registration and insurance card. Moroz asked defendant

where he was traveling and defendant said "Paulsboro," but the

vehicle had been traveling in a direction away from Paulsboro.

Moroz observed an unopened beer can between defendant and his

girlfriend in the vehicle. Moroz testified that when he interacted

13 A-2432-16T2
with defendant as he sat in the vehicle there was no evidence

defendant was impaired.

Moroz testified he returned to his police car and determined

defendant's license and the vehicle's registration and insurance

card were valid. He returned to the vehicle and, based on his

observation of the beer can, requested that defendant exit so he

could assess whether defendant had been drinking. As defendant

walked from the vehicle, he held his wallet in his hand and items

fell from the wallet that defendant retrieved from the ground.

Moroz observed that defendant's pupils were slightly dilated, but

testified he did not detect the odor of alcohol on defendant's

breath, defendant's speech was not slurred, and defendant answered

his questions without difficulty. Moroz also testified that based

on his observations, he determined defendant was not impaired.

Moroz asked defendant where he and his girlfriend were

traveling, and defendant said they were "coming from Home Depot,"

and going to a WaWa store to purchase a sandwich for her. Defendant

avoided eye contact with Moroz, and instead looked at his vehicle

and the road.

Moroz also spoke with defendant's girlfriend, who explained

she and defendant had just left a Home Depot store and were going

"down there" to shop but did not have any "store in mind." Moroz

asked her if they were traveling to "Deptford" and she quickly

14 A-2432-16T2
said "yes." Moroz found the response odd because it was late in

the evening, the stores in Deptford would be closing shortly and

she readily agreed to his random suggestion of "Deptford" as

defendant and Lewis's destination.

Due to defendant and his girlfriend's conflicting accounts

about where they were traveling, Moroz continued asking questions.

He asked defendant if he had previously been arrested for

narcotics. Defendant initially said "no," but immediately changed

his response to "yes" and explained he had been arrested and "got

blamed" but was "let . . . go." The court found Moroz observed

defendant was "very fidgety, was constantly licking his lips, and

moving them from left to right[,]" and that "[d]efendant's lips

were white and chapped, and . . . [defendant] did not seem to be

able to control his blinking because at times he would squint and

just close one eye."

Moroz asked if there were any drugs in the car, and defendant

said "no." Moroz asked defendant for consent to search the

vehicle, and defendant denied the request. Moroz then told

defendant a canine would be brought to the scene to conduct a

sniff of the vehicle. Moroz testified the canine could sniff only

for the presence of narcotics.

Fourteen minutes after the initial motor vehicle stop, Moroz

requested that a neighboring police department conduct a canine

15 A-2432-16T2
sniff of defendant's vehicle because a canine was not available

from his department. Approximately thirty-one minutes later, a

canine and police officer arrived and conducted an exterior sniff

of the vehicle. The canine reacted positively to the vehicle and,

as a result, Moroz searched the vehicle and found a gun under the

front seat.

Moroz arrested defendant and his girlfriend. During a search

incident to their arrests, defendant was found in possession of

controlled dangerous substances. Moroz advised defendant of his

Miranda rights. After being transported to the police station,

defendant was searched again and additional controlled dangerous

substances were found. Defendant also admitted ownership of the

handgun after Moroz advised him that he and his girlfriend would

be charged with possession of the gun.

The court denied defendant's suppression motion, finding that

"[d]uring the course of the stop, reasonable suspicion arose

justifying calling for a [canine] unit for an exterior sniff test

of the vehicle." The court based its determination upon the

following findings:

[F]ollowing the motor vehicle stop, . . . Mroz
[sic] observed an unopened beer can in plain
view; the occupants of the vehicle provided
differing accounts as to where they were
heading; [d]efendant's nervous demeanor by
looking away and avoiding eye contact;
[d]efendant's constant licking and moving his

16 A-2432-16T2
 lips, as well as [d]efendant's constant
squinting and shutting one eye; [d]efendant's
repeated dropping of items and fumbling with
them: and [d]efendant's extensive narcotics
history, which he initially denied.

The court concluded those observations, "combined with . . .

Moroz's training and experience, and rational inferences drawn

therefrom, . . . gave rise to a sufficient reasonable suspicion

to call for a [canine] officer."

Defendant argues the police impermissibly prolonged the motor

vehicle stop "by half an hour in order to effectuate" the canine

sniff that provided the basis for the search of the vehicle and

recovery of the gun, as well as defendant's arrest and the recovery

of the drugs in his possession. We agree and reverse the court's

suppression order.

"A lawful roadside stop by a police officer constitutes a

seizure under both the Federal and New Jersey Constitutions."

Dunbar, 229 N.J. at 532. "To be lawful, an automobile stop 'must

be based on reasonable and articulable suspicion that an offense,

including a minor traffic offense, has been or is being committed."

State v. Bacome, 228 N.J. 94, 103 (2017) (quoting State v. Carty,

170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351

(2002)). Here, Moroz properly stopped defendant's vehicle because

the pick-up truck had tinted windows. See State v. Cohen, 347

N.J. Super. 375, 380 (App. Div. 2002) (noting "that N.J.S.A. 39:3-

17 A-2432-16T2
74 prohibits the use of tinted windows [that] fail to meet the

applicable standard now set forth in N.J.A.C. 13:20-33.7").

Defendant does not argue otherwise.

During a lawful traffic stop, a police officer is permitted

to "inquire 'into matters unrelated to the justification for the

traffic stop,'" Dunbar, 229 N.J. at 533 (quoting Arizona v.

Johnson, 555 U.S. 323, 333 (2009)), and "may make 'ordinary

inquiries incident to [the traffic] stop,'" ibid. (alteration in

original) (quoting Rodriquez, 575 U.S. at ___, 135 S. Ct. at 1615).

"If, during the course of the stop or as a result of the reasonable

inquiries initiated by the officer, the circumstances 'give rise

to suspicions unrelated to the traffic offense, an officer may

broaden [the] inquiry and satisfy those suspicions.'" State v.

Dickey, 152 N.J. 468, 479-80 (1998) (alteration in original)

(quoting United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir.

1995)).

The inquiries, however, "may not [be performed] 'in a way

that prolongs the stop, absent the reasonable suspicion ordinarily

demanded to justify detaining an individual.'" Dunbar, 229 N.J.

at 536 (quoting Rodriquez, 575 U.S. at ___, 135 S. Ct. at 1615).

A detention following a lawful stop "must be reasonable both at

its inception and throughout its entire execution." Coles, 218

N.J. at 344. Prolonging a traffic stop "beyond the time reasonably

18 A-2432-16T2
required to complete the . . . stop's purpose . . . is unlawful

absent independent reasonable suspicion of criminal activity."

Dunbar, 229 N.J. at 536.

In determining "whether an investigative detention is

unreasonable, common sense and ordinary human experience must

govern over rigid criteria." Dickey, 152 N.J. at 477 (quoting

United States v. Sharpe, 470 U.S. 675, 685 (1985)). "An officer

does not need a warrant to make [an investigatory] stop if it is

based on 'specific and articulable facts which, taken together

with rational inferences from those facts,' give rise to a

reasonable suspicion of criminal activity." State v. Rodriquez,

172 N.J. 117, 126-27 (2002) (citation omitted). Our Supreme Court

has declared the "standard for reasonable suspicion required to

uphold an investigative detention is lower than the standard of

probable cause to justify an arrest[,]" State v. Nishina, 175 N.J.

502, 511 (2003) (citation omitted), and "must be based on the law

enforcement officer's assessment of the totality of the

circumstances he [or she] faced," ibid. (quoting State v. Davis,

104 N.J. 490, 504 (1986)). A detention, however, becomes unlawful

when it is longer than is reasonably necessary to diligently

investigate an officer's reasonable suspicion of criminal

activity. Dickey, 152 N.J. at 476-79.

19 A-2432-16T2
 In Dunbar, the Court defined "the proper basis for a canine

sniff during a lawful traffic stop." 229 N.J. at 538. A canine

sniff of a vehicle may be properly conducted without "reasonable

suspicion independent from the justification for a traffic stop,"

but the sniff "may not add time to the stop" in the absence of a

reasonable and articulable suspicion. Id. at 540. It is only

where "an officer has articulable reasonable suspicion independent

from the reason for the traffic stop that a suspect possesses

narcotics, the officer may continue a detention to administer a

canine sniff." Ibid. (emphasis added); accord Illinois v.

Caballes, 543 U.S. 405, 408 (2005).

Here, although the court did not expressly find Moroz had an

articulable reasonable suspicion defendant possessed narcotics,

the court implicitly concluded that he did. The court found Moroz

had an "articulable reasonable suspicion" based in part on

defendant's "extensive narcotics history." The finding, however,

is not supported by any evidence in the record and therefore does

not provide a proper basis for the court's determination Moroz had

an articulable reasonable suspicion defendant possessed controlled

dangerous substances. Cf. Dunbar, 229 N.J. at 538 (finding we

defer to a motion court's fact-finding supported by sufficient

evidence in the record).

20 A-2432-16T2
 The record is bereft of any evidence Moroz was aware defendant

had an extensive narcotics history or that Moroz reasonably

believed he did. The only evidence was that defendant first told

Moroz he had never been arrested for drugs, and then immediately

stated he had been arrested but was let go. Although knowledge

of a defendant's prior drug history may be considered as a

circumstance supporting a reasonable suspicion of criminal

activity, State v. Privott, 203 N.J. 16, 28-29 (2010) (finding the

officer's knowledge of the defendant's prior narcotics arrests and

gang association in part supported an investigatory stop); State

v. Mann, 203 N.J. 328, 339-40 (2010) (finding the officer's

knowledge the defendant was a known drug dealer in part supported

a reasonable and articulable suspicion for an investigatory stop),

there is no evidence showing Moroz knew defendant had a prior

narcotics history, extensive or otherwise, supporting a reasonable

suspicion defendant possessed illicit drugs during the motor

vehicle stop.

The court's conclusion Moroz had an articulable reasonable

suspicion of criminal activity based on his "training and

experience" is also not supported by the record. Moroz never

testified he based his determination there was reasonable

suspicion justifying the request for the canine upon his prior

21 A-2432-16T2
training and experience.8 He did not testify, for example, that

based on his training and experience he concluded defendant's

actions or appearance provided a reasonable suspicion of drug

possession.

"When determining if the [police] officer's actions were

reasonable," the court must consider the reasonable inferences

that the police officer is entitled to draw "in light of his

experience." State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Terry,

392 U.S. at 27). But here there is no evidence Moroz had any

experience supporting an articulable reasonable suspicion

defendant possessed drugs based on the circumstances presented.

Moroz testified only that he worked as a "Class II Special Officer"

for "the summer months of 2013" in a municipality and for a year

in another municipality prior to being hired as full-time patrolman

in Mantua Township in 2014, but he did not provide any information

about his experience during those periods of employment.

Similarly, Moroz was employed as a patrolman for one year prior

8
The only testimony Moroz provided that is arguably based on his
experience is that when he saw the beer can he thought defendant
might have been drinking because impaired drivers will often take
a beer "for the road." That observation, even if based on his
experience, did not support a reasonable suspicion defendant
possessed drugs. His suspicion defendant may have consumed alcohol
prior to the stop is unrelated to the possession of drugs and
Moroz testified that prior to his request for the canine, he
determined defendant was not impaired.

22 A-2432-16T2
to the November 28, 2015 motor vehicle stop, but other than stating

he made traffic stops and arrests, there is no evidence he made

any prior drug arrests or had any experience supporting a

reasonable suspicion defendant possessed drugs based on the

circumstances presented during the motor vehicle stop.

Moroz testified he attended a single training class covering

circumstances where a person is smuggling and selling narcotics,

including "signs to look for deceptive behavior in that regard."

He did not, however, testify that defendant exhibited any of those

"signs" or that any of the circumstances showing a person is

smuggling or selling narcotics about which he was taught were

present during the motor vehicle stop. Thus, there is no evidence

supporting the court's determination Moroz's experience and

training provided a basis for a reasonable suspicion defendant

possessed any controlled dangerous substances when Moroz requested

the canine.

To justify defendant's prolonged detention while awaiting the

canine's arrival, Moroz must have had a particularized articulable

reasonable suspicion that defendant possessed illicit drugs.

Dunbar, 229 N.J. at 538. The canine could only sniff for

controlled dangerous substances, so there was no purpose for

defendant's prolonged detention other than to determine if

defendant possessed such substances.

23 A-2432-16T2
 In determining whether there were objective facts supporting

an articulable reasonable suspicion defendant possessed illicit

drugs, we consider the totality of the circumstances presented.

State v. Stovall, 170 N.J. 346, 356 (2002). "Neither 'inarticulate

hunches' nor an arresting officer's subjective good faith can

justify an infringement of a citizen's constitutionally guaranteed

rights. Rather, the officer 'must be able to point to specific

and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant [the] intrusion.'"

Arthur, 149 N.J. at 8 (alteration in original) (citations omitted).

"Moreover, the court should scrutinize the reasons for the

particularized suspicion." State v. Amelio, 197 N.J. 207, 212

(2008) (citation omitted).

Here, when stripped of the motion court's unfounded reliance

on Moroz's knowledge of defendant's purported extensive narcotics

record and Moroz's experience and training, we are convinced there

are insufficient objective facts supporting an articulable

reasonable suspicion defendant possessed illicit drugs. The court

found only two other factors supporting its determination there

was reasonable suspicion justifying defendant's prolonged

detention awaiting the canine's arrival. The court first cited

Moroz's observations of defendant's nervous demeanor, including

his dropping of items from his wallet and later a cigarette, his

24 A-2432-16T2
failure to make eye contact with Moroz, the licking and movement

of his lips and his squinting and shutting of one eye. Second,

the court relied on defendant and his girlfriend's inconsistent

versions of where they were traveling.

"[A]nxiety or nervousness in the face of approaching police

officers can be common among the innocent and cannot alone betoken

criminal activity or justify reasonable suspicion that an anxious

or nervous person had or was engaged in criminal activity." State

v. Williams, 381 N.J. Super. 572, 589 (App. Div. 2005), rev'd on

other grounds, 192, N.J. 1 (2007). An "appearance of nervousness

is not sufficient grounds for the reasonable and articulable

suspicion necessary to extend the scope of a detention beyond the

reason for the original stop" of a motor vehicle. Carty, 170 N.J.

at 648. It is only where a defendant's nervousness is accompanied

by other factors that it supports a reasonable suspicion of

criminal activity. Mann, 203 N.J. at 339-40; see also Stovall,

170 N.J. at 367 (collecting cases where a suspect's nervousness

in part supported reasonable suspicion for an investigatory

detention).

In Elders, 192 N.J. at 248-50, the Court determined the police

lacked reasonable suspicion that the defendants were engaged in

criminal activity justifying a request to search their vehicle.

The Court affirmed the trial court's finding the police did not

25 A-2432-16T2
have a reasonable and articulable suspicion "that drugs [were]

being secreted in the vehicle" based on their observations of the

"defendants' nervous behavior, their conflicting statements" about

where they were traveling and their vehicle's "fallen-off gas

tank." Ibid. (alteration in original). Finding that whether the

police "possessed the necessary suspicion [was a] close call[],"

and that "nervousness and conflicting statements, along with

indicia of wrongdoing, can be cumulative factors in a totality of

circumstances analysis that leads to a finding of reasonable and

articulable suspicion of ongoing criminality[,]" the Court

affirmed the trial court's determination that the officer's

observations "gave rise to nothing more than a 'hunch' that

'something was wrong.'" Id. at 250.

Moroz's observations of defendant's nervous movements and

defendant and his girlfriend's conflicting versions of where they

were traveling did not support a reasonable and articulable

suspicion that defendant possessed a controlled dangerous

substance because they are untethered to any other "indicia of

wrongdoing." Ibid. Moroz determined defendant was not under the

influence of drugs, and the record is otherwise devoid any of any

other circumstances presented supporting a reasonable suspicion

defendant possessed illicit drugs. See, e.g., Privott, 203 N.J.

at 29 (finding the officer's knowledge of the defendant's prior

26 A-2432-16T2
narcotics arrests and gang association in part supported a

reasonable suspicion of criminal activity); Stovall, 170 N.J. at

358 (finding it permissible for a police officer to rely on a

"drug courier profile" as a circumstance supporting reasonable

suspicion); Williams, 381 N.J. Super. at 583-84 (finding the

defendant's presence in an area known for drug trafficking

supported a reasonable and articulable suspicion the defendant

possessed a controlled dangerous substance). Therefore, the

totality of the circumstances here is insufficient to establish

the articulable reasonable suspicion defendant possessed

controlled dangerous substances necessary to justify defendant's

delayed and prolonged detention while waiting for the canine.

Dunbar, 229 N.J. at 540.

We reverse the court's order denying defendant's motion to

suppress the gun from the vehicle under the October 2016

indictment. Because the gun was seized illegally, we also reverse

the court's denial of defendant's request to suppress the drugs

found during the searches incident to defendant's arrest for

possession of the gun at the scene of the motor vehicle stop and

later at the police station. See State v. Richards, 351 N.J.

Super. 289, 308 (App. Div. 2002) (finding that evidence seized

following an illegal protective search must be suppressed under

the exclusionary rule).

27 A-2432-16T2
C. Defendant's Statements on November 28, 2015

Defendant also claims the court erred by failing to suppress

statements he made at the police station following his arrest on

November 28, 2015. Defendant contends the State failed to prove

beyond a reasonable doubt that defendant knowingly waived his

Miranda rights and, therefore, the court erred by finding his

statement acknowledging ownership of the gun was inadmissible. We

reverse the court's order denying defendant's suppression motion

because he made the statements following his arrest, which we have

determined was founded solely on the illegal seizure of the gun

from the vehicle and drugs from his possession. See State v.

Rosario, 229 N.J. 263, 277 (2017); see also Wong Sun v. United

States, 371 U.S. 471, 487-88 (1963).

Absent that determination, we would otherwise reject

defendant's claim the State did not prove he knowingly and

voluntarily waived his Miranda rights. The court's determination

that Moroz properly administered the Miranda rights and defendant

knowingly and voluntarily waived his rights is supported by

substantial credible evidence. See Elders, 192 N.J. at 243-44.

Defendant's argument to the contrary lacks sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2). In any

event, because defendant's statements were made following his

28 A-2432-16T2
arrest based on illegally seized evidence, the court erred by

denying his suppression motion.

III.

In its sentencing determination under the 2015 indictment,

the court found aggravating factor one, "[t]he nature and

circumstances of the offense," N.J.S.A. 2C:44-1 (a)(1), and gave

it "very slight weight," and gave substantial weight to aggravating

factors three, the risk defendant will commit another offense,

N.J.S.A. 2C:44-1(a)(3), six, the extent and seriousness of

defendant's prior record, N.J.S.A. 2C:44-1(a)(6), and nine, the

need to deter defendant and others from violating the law, N.J.S.A.

2C:44-1(a)(9). The court did not find any mitigating factors, see

N.J.S.A. 2C:44-1(b)(1)-(13), concluded it was clearly convinced

the aggravating factors substantially outweighed the non-existent

mitigating factors and imposed a five-year sentence with a two-

year period of parole ineligibility.

Defendant challenges only the sentence imposed by the court

on the charges in the 2015 indictment, claiming the court erred

by finding aggravating factor one, and by basing its sentencing

decision on a finding defendant was a "professional drug dealer."

We review a "trial court's 'sentencing determination under a

deferential [abuse of discretion] standard of review.'" State v.

Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214

29 A-2432-16T2
N.J. 594, 606 (2013)). We affirm a sentence if: (1) the trial

court followed the sentencing guidelines; (2) its findings of fact

and application of aggravating and mitigating factors were based

on competent, credible evidence in the record; and (3) the

application of the law to the facts does not "shock[] the judicial

conscience." State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting

State v. Roth, 95 N.J. 334, 364-65 (1984)). When reviewing a

trial court's sentencing decision, we will not "substitute [our]

judgment for that of the sentencing court." State v. Fuentes, 217

N.J. 57, 70 (2014) (citation omitted).

Applying these standards, we are persuaded the court did not

abuse its discretion by finding aggravating factor one, the nature

and circumstances of the offense. N.J.S.A. 2C:44-1(a)(1).

Defendant was convicted of possession of 10.94 grams of cocaine

and 1.02 grams of 3,4 Methylenedioxy-ethylcalthinone. The court

found aggravating factor one based on the weight of the controlled

dangerous substances, reasoning the weight of each drug exceeded

the "trace amount" required to establish the commission of the

third-degree possessory offenses. See, e.g., State v. Wells, 336

N.J. Super. 139, 144-45 (Law Div. 2000) (finding possession of a

trace amount of cocaine constitutes commission of a possessory

drug offense under N.J.S.A. 2C:35-10).

30 A-2432-16T2
 Possession of drugs in excess of the amounts required to

prove the offense charged supports a finding of aggravating factor

one. See State v. Henry, 418 N.J. Super. 481, 492 (App. Div.

2010) (finding "a court may consider as an aggravating factor

facts reflecting that a defendant exceedingly satisfied a

quantity-related element of an offense"); State v. Varona, 242

N.J. Super. 474, 490 (App. Div. 1990) (finding evidence showing

the defendant possessed seven times the amount of cocaine required

to prove a first-degree possession with intent charge supports a

finding of aggravating factor one); State v. Toro, 229 N.J. Super.

215, 226 (App. Div. 1988) (finding "the 'nature and circumstances'

of a drug offense include the amount of drugs involved").9 Thus,

the court did not abuse its discretion by relying on the weight

of the drugs defendant possessed to support its finding of

aggravating factor one and, in our view, properly tempered its

finding by assigning only very slight weight to the factor.

The sentence was also imposed, in part, based on the court's

finding "defendant is a professional drug dealer" and conclusion

that "unless there's a substantial change in attitude, it is this

[c]ourt's feeling . . . defendant is highly likely to reoffend."

9
Our decision in Toro was reversed on other grounds in State v.
Velez, 119 N.J. 185, 187 (1990).

31 A-2432-16T2
Although the court did not expressly rely on its finding to support

its determination of a particular aggravating factor,10 it clearly

relied on defendant's putative status as a "professional drug

dealer" as part of its sentencing calculus.

The court erred, however, because its finding is not supported

by credible evidence. See State v. Dalziel, 182 N.J. 494, 505

(2005) (noting the "well-established rule that aggravating and

mitigating factors must be supported by credible evidence").

Defendant has a lengthy and varied criminal and offense history,

but it shows only one conviction for distribution of a controlled

dangerous substance, marijuana, for an offense committed in 2000.

His other drug related offenses – a 1997 juvenile offense, and

three as an adult – were possessory crimes. Under the 2015

indictment, defendant was not charged with distribution, was found

not guilty of four possession with intent to distribute charges,

and was convicted of two possessory offenses.11 Moreover, the

presentence investigation report and the sentencing record is

otherwise bereft of any evidence defendant is a professional drug

10
The court's determination, if supported by credible evidence,
would support a finding of aggravating factors three and nine.
See N.J.S.A. 2C:44-1(a)(3), (9).
11
Similarly, defendant pleaded guilty under the August 2016
indictment to possession of a controlled dangerous substance.

32 A-2432-16T2
dealer. We therefore vacate the sentence imposed by the court

under the 2015 indictment, and remand for resentencing.

We further observe that the judgment of conviction under the

2015 indictment incorrectly states that the sentence imposed shall

"run consecutive to #15-12-[00]766[-I] and #16-08-[00]670[-I]."

This is an obvious error because the sentence imposed under

Indictment No. 15-12-0766 could not run consecutive to itself. At

the sentencing proceeding, the court actually ordered that the

sentence imposed under Indictment 15-12-00766 run consecutive to

the sentences imposed under Indictment Nos. 16-10-0801 and 16-08-

0670. On remand, if the court imposes a consecutive sentence on

the charges for which defendant was convicted under the 2015

indictment, the judgment of conviction should accurately reflect

the sentences imposed.

We reverse the court's order denying defendant's suppression

motion and reverse his conviction under the October 2016 indictment

(Gloucester County Indictment No. 16-10-0801), and remand for

further proceedings. We affirm the court's order denying

defendant's suppression motion and affirm his conviction under the

2015 indictment (Gloucester County Indictment No. 15-12-0766). We

vacate the court's sentence under the 2015 indictment (Gloucester

County Indictment No. 15-12-0766) and remand for resentencing. We

do not retain jurisdiction.

33 A-2432-16T2
34 A-2432-16T2