NOT FOR PUBLICATION WITHOUT THE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-3531-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEVON KING,
Defendant-Appellant.
___________________________________
Argued May 24, 2018 – Decided June 8, 2018
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
16-06-0794.
Rochelle Watson, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Rochelle Watson, of counsel and on the brief).
Jennifer E. Kmieciak, Deputy Attorney General,
argued the cause for respondent (Gubir S.
Grewal, Attorney General, attorney; Jennifer
E. Kmieciak, of counsel and on the brief).
PER CURIAM
After the trial judge denied his motion to suppress thirty
small bags of crack cocaine found in a magnetic key holder that
was attached to the wheel well of his car, defendant pled guilty
to third-degree possession of a controlled dangerous substance
(CDS). The judge sentenced defendant to two years of probation.
On appeal, defendant raises the following contentions:
THE EVIDENCE RECOVERED FROM THE MAGNETIC KEY
HOLDER MUST BE SUPPRESSED BECAUSE IT IS THE
FRUIT OF AN UNLAWFUL INVESTIGATORY STOP.
ALTERNATIVELY, THE SEARCH OF THE WHEEL WELL
OF DEFENDANT'S CAR WITHOUT PROBABLE CAUSE
VIOLATED BOTH THE STATE AND FEDERAL
CONSTITUTIONS.
A. The Investigatory Stop Was Not Supported
By Reasonable Suspicion.
B. Under Both State and Federal Law, The
Police Effected an Unconstitutional
Search When They Intruded Into
Defendant's Wheel Well to Detach the
Magnetic Key Holder.
C. The Opening Of The Magnetic Key Holder
Constituted An Independent Fourth
Amendment Search That Was Not Supported
By Probable Cause.
After reviewing the record in light of the arguments advanced on
appeal, we affirm, but for reasons other than those expressed by
the trial judge.1
In lieu of presenting testimony at the suppression hearing,
the parties stipulated to the facts set forth in the relevant
1
See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011)
(stating that an appellate court is "free to affirm the trial
court's decision on grounds different from those relied upon by
the trial court").
2 A-3531-16T3
police report, which the judge read into the record. On January
14, 2006, three police officers were among a group of officers
assigned to conduct a surveillance of a street because there had
been "several citizen complaints of narcotics activity in that
area[.]" At approximately 12:30 p.m., the officers saw defendant,
who was "a known drug dealer," getting in and out of a silver
Lexus that was parked on the street. There were two other men in
the car.
As they continued to watch defendant, the officers saw an
older man approach the car with "currency in his hand[.]"
Defendant got out of the car and spoke to the man. Defendant then
went to the driver's side front tire, "reached down and appeared
to be looking for something near the tire." Based upon the
officers' "training and experience with CDS arrests and
investigations, [they] believed the males were engaged in a CDS
transaction."
Defendant spotted the officers as they began to approach him.
Defendant told the older man "to walk away" and then moved to the
rear of his car. The officers stopped defendant and the other
man, and directed the other two males to get out of the car.
One of the officers went to the front of the car and "looked
in the area where [defendant] was looking and recovered a magnetic
key hold[er] attached to the vehicle's wheel well." The report
3 A-3531-16T3
explained that a key holder like the one found in the wheel well
was "a common tool used by . . . drug dealers to hide their
narcotics." An officer opened the container and found thirty
small bags of crack cocaine. According to the report, the key
holder had to have been placed in the wheel well "when the vehicle
was stopped or it would have fallen . . . while [the car was] in
motion." The officers then arrested defendant, his suspected
customer, and the two men in the car.
Under the totality of these circumstances, the judge found
that the police had a reasonable suspicion that defendant was
engaged in a drug transaction and, therefore, they conducted an
appropriate investigatory stop. Drawing an analogy between the
facts of this case and those involved in our decision in State v.
Jessup, 441 N.J. Super. 386, 388-89 (App. Div. 2015),2 the judge
found that defendant did not have "a reasonable expectation of
privacy" in the key holder because anyone present near the car
could see defendant placing it in, and removing it from, the area
near his front tire, suspect it might contain contraband, and then
easily take it from the wheel well if defendant left the scene.
2
In Jessup, we upheld the validity of a search for, and seizure
of, a zip-lock bag after the police observed the defendant removing
it from the top of a car's rear tire, taking items from the bag,
and returning the bag to the top of the tire. Id. at 388. The
defendant then gave the items to another man in exchange for money.
Ibid.
4 A-3531-16T3
Thus, the judge concluded the police properly seized and opened
the key holder without a warrant.
Although raised by the State in its brief in opposition to
defendant's suppression motion, the judge did not address whether
the search was proper under the "automobile exception" to the
warrant requirement as set forth in the Supreme Court's then-
recent decision in State v. Witt, 223 N.J. 409 (2015), decided
less than four months prior to the January 14, 2016 investigatory
stop in this case.
In Witt, the Court abandoned the "pure exigent-circumstances
requirement" it had added to the constitutional standard to justify
an automobile search and returned to the standard set forth in
State v. Alston, 88 N.J. 211 (1981). Witt, 223 N.J. at 414. Thus,
the Court held "that a warrantless search of an automobile was
constitutionally permissible, provided that the police had
probable cause to search the vehicle and that the police action
was prompted by the 'unforeseeability and spontaneity of the
circumstances giving rise to probable case.'" Ibid. (quoting
Alston, 88 N.J. at 233).
The Court made clear that the Witt standard was to be "given
prospective application from the date of [its] opinion[,]" and,
therefore, it was in effect at the time of both the January 14,
2016 investigatory stop and the judge's September 12, 2016
5 A-3531-16T3
decision. Because the reestablished automobile exception to the
warrant requirement plainly justified the police officers' actions
in this case, we need not address the trial judge's determination
that defendant lacked a reasonable expectation of privacy in the
key holder.
On appeal, defendant argues that investigatory stop was
improper because the police did not have a reasonable suspicion
that defendant was engaged in criminal activity. We disagree.
Our review of a trial judge's decision on a motion to
suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009).
In reviewing a motion to suppress evidence, we must uphold the
judge's factual findings, "so long as those findings are supported
by sufficient credible evidence in the record." State v. Rockford,
213 N.J. 424, 440 (2013) (quoting Robinson, 200 N.J. at 15). We
do not, however, defer to a trial judge's legal conclusions, which
we review de novo. Ibid.
It is well settled that the police may lawfully stop a motor
vehicle and detain the motorists in order to investigate suspicious
conduct. State v. Stovall, 170 N.J. 346, 356 (2002). Such an
"investigatory stop," also known as a Terry stop, is characterized
by a detention in which the person approached by a police officer
would not reasonably feel free to leave, even though the encounter
6 A-3531-16T3
falls short of a formal arrest. Id. at 355-56; see also Terry v.
Ohio, 392 U.S. 1, 19 (1968).
During a Terry motor vehicle stop, a police officer may detain
individuals for a brief period, if the stop was "based on
reasonable and articulable suspicion that an 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 (2002)).
Whether a reasonable and articulable suspicion exists depends upon
the totality of the circumstances. State v. Pineiro, 181 N.J. 13,
22 (2004).
In evaluating the totality of the circumstances surrounding
a Terry stop, a reviewing court must balance "the State's interest
in effective law enforcement against the individual's right to be
protected from unwarranted and/or overbearing police intrusions."
State v. Davis, 104 N.J. 490, 504 (1986). As the Supreme Court
observed in Davis:
Such encounters are justified only if the
evidence, when interpreted in an objectively
reasonable manner, shows that the encounter
was preceded by activity that would lead a
reasonable police officer to have an
articulable suspicion that criminal activity
had occurred or would shortly occur. No
mathematical formula exists for deciding
whether the totality of circumstances provided
the officer with an articulable or
particularized suspicion that the individual
in question was involved in criminal activity.
Such a determination can be made only through
7 A-3531-16T3
a sensitive appraisal of the circumstances in
each case.
[Davis, 104 N.J. at 505.]
In reviewing the "totality of the circumstances," we are also
required to "give weight to 'the officer's knowledge and
experience' as well as 'rational inferences that could be drawn
from the facts objectively and reasonably viewed in light of the
officer's expertise.'" State v. Citarella, 154 N.J. 272, 279
(1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). "The
fact that purely innocent connotations can be ascribed to a
person's actions does not mean that an officer cannot base a
finding of reasonable suspicion on those actions as long as 'a
reasonable person would find the actions are consistent with
guilt.'" Id. at 279-80 (quoting Arthur, 149 N.J. at 11).
Applying these principles, we discern no basis for disturbing
the trial judge's determination that based upon the totality of
the circumstances presented to them, the officers had a reasonable
suspicion that defendant and the older man were engaged in a drug
transaction. As detailed above, the police were in the area
because of citizen complaints of narcotics activity. During their
surveillance, the officers saw defendant, a known drug dealer,
speak to the man, who was already holding money in his hand.
Defendant then went to the wheel well of his car, which the
8 A-3531-16T3
officers knew from their experience was a place that dealers stored
their drugs in key holders. As the officers moved in, defendant
told the other man to leave the area.
Viewed through the prism of the officers' experience in
conducting drug trafficking investigations, it was entirely
appropriate for the police to reasonably suspect that defendant
was engaging in a narcotics transaction with the other man.
Therefore, the Terry stop of defendant and his vehicle was clearly
appropriate.
Under Witt, the State must next demonstrate the officers had
probable cause to believe the vehicle contained contraband. 223
N.J. at 414. Defendant contends the State failed to meet that
burden but again, we disagree.
In order to establish probable cause to conduct a search, the
State must show from the totality of the circumstances that there
is "a fair probability that contraband or evidence of a crime will
be found in a particular place." State v. Chippero, 201 N.J. 14,
28 (2009) (quoting United States v. Jones, 994 F.2d 1051, 1056 (3d
Cir. 1993)). The standard was clearly met here. Again, the police
observed defendant looking for something near the tire of his car
after speaking to the man who had approached him with money in his
hand. Based on the officers' experience in narcotics
investigations, they reasonably believed that defendant, a known
9 A-3531-16T3
drug dealer, had stored his drugs in the wheel well area of his
car and was retrieving them to complete the sale. Thus, there was
more than "a fair probability" that defendant's stash was located
near the front tire of defendant's car, and the police therefore
had probable cause to search there for the suspected contraband.
Ibid.
As required by Witt, the officers' probable cause arose from
unforeseeable and spontaneous circumstances, 223 N.J. at 414, and
defendant does not contend otherwise. The police were conducting
a surveillance of the street because they had received citizen
complaints of drug dealing in the area. They were not specifically
looking for either defendant or his car at the time they saw him
engaged in a suspected drug transaction. Therefore, the search
was fully justified by the automobile exception reestablished in
Witt.
Finally, defendant argues that even assuming that the police
were permitted to look into the wheel well and take out the key
holder, they were not permitted to open it without a warrant. This
argument also lacks merit. Indeed, it is well settled "that once
probable cause exists to search . . . a motor vehicle, the police
may search every part of the vehicle, including containers, in
which there is probable cause to believe that the object of the
search may be found." State v. Esteves, 93 N.J. 498, 508 n.3
10 A-3531-16T3
(1983) (citing United States v. Ross, 456 U.S. 798, 824 (1982));
see also State v. Probasco, 220 N.J. Super. 355, 359 (App. Div.
1987) (citations omitted). As noted above, the officers stated
in their report that key holders are frequently used by drug
dealers as storage containers for their narcotics, and the key
holder was found in the same area of the car where defendant had
been looking in response to his conversation with his suspected
customer. Therefore, the officers did not need a warrant to open
the key holder, where they found thirty small bags of crack
cocaine.
Affirmed.
11 A-3531-16T3