STATE OF NEW JERSEY VS. TYQUAN FUQUA STATE OF NEW JERSEY VS. DEREK FUQUA STATE OF NEW JERSEY VS. CHANELL VIRGIL STATE OF NEW JERSEY VS. TREVIS THOMAS (14-04-0026, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3149-17
A-3979-17
A-4584-17
A-0137-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYQUAN FUQUA,
a/k/a TYOUAN FUQUA,

Defendant-Appellant.
__________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEREK FUQUA, a/k/a
DISHAWN FUQUA,
DEREK D. FUQUA,
JAMES FUQUA,
DERRICK FUQUA,
JOHNNIE BROWN,
JAHARIE CROWN,
and DEREK FOQUA,
 Defendant-Appellant.
__________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHANELL VIRGIL,

Defendant-Appellant.
__________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TREVIS THOMAS,

Defendant-Appellant.
__________________________

Submitted May 24, 2021 – Decided August 20, 2021

Before Judges Rothstadt and Susswein.

On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
14-04-0026.

Joseph E. Krakora, Public Defender, attorney for
appellant Tyquan Fuqua in A-3149-17 (Frank M.
Gennaro, Designated Counsel, on the brief).

A-3149-17
2
 Joseph E. Krakora, Public Defender, attorney for
appellant Derek Fuqua in A-3979-17 (Richard
Sparaco, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for
appellant Chanell Virgil in A-4584-17 (David A. Gies,
Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for
appellant Trevis Thomas in A-0137-18 (Alyssa Aiello,
Assistant Deputy Public Defender, of counsel and on
the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent in A-3149-17 and A-3979-17 (Adam D.
Klein, Deputy Attorney General, of counsel and on the
briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent in A-4584-17 (Steven Cuttonaro, Deputy
Attorney General, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent in A-0137-18 (William P. Cooper-Daub,
Deputy Attorney General, of counsel and on the brief).

Appellant Derek Fuqua filed pro se supplemental
briefs.

PER CURIAM

Defendants Derek Fuqua, Tyquan Fuqua, Trevis Thomas, and Chanell

Virgil appeal from their guilty plea convictions arising from their participation

in a drug trafficking operation led by Derek Fuqua. The State Police

investigation began in 2012 and employed extensive electronic surveillance

A-3149-17
3
authorized pursuant to the New Jersey Wiretapping and Electronic

Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-1 to -37. The

wiretap portion of the investigation ran over the course of sixty-five days in

February through April 2013, during which time nearly 20,000 telephone calls

and text messages were intercepted. In all, twenty-two co-defendants were

charged in the resulting State Grand Jury indictment.

Defendants contend the State violated the Wiretap Act by intercepting a

call that was made to an attorney's office and by failing to adequately

"minimize" a number of non-relevant calls, primarily personal conversations

during which criminal activity was not discussed. Because defendants Derek

Fuqua, Tyquan Fuqua, Thomas, 1 and Virgil all raise the same contentions

relating to the minimization requirements of the Wiretap Act, we calendared

their appeals back-to-back and now consolidate them for the purpose of issuing

a single opinion.

We affirm the trial court's ruling that the State did not violate the

Wiretap Act by intercepting Derek Fuqua's call to an attorney's office. The

1
We note that Thomas did not join in the motion to suppress the wiretap
evidence and did not participate in the suppression hearing. For reasons we
explain later in this opinion, see infra note 5, we nonetheless address on the
merits his contention on appeal that his rights under the Wiretap Act were
violated by the manner in which intercepted calls were minimized.
A-3149-17
4
record amply supports the trial court's finding that Fuqua's intercepted

conversation was with a secretary or receptionist—rather than an attorney—

and that the call related solely to scheduling matters with no discussion of

legal advice or disclosure of any confidential information. Accordingly, that

interception violated neither the attorney-client privilege nor the Wiretap Act

provision designed to safeguard privileged communications.

Defendants also argued to the trial court that non-relevant telephone

calls were improperly monitored, requiring the suppression of all information

and evidence derived from the entire electronic surveillance investigation. The

trial court convened a hearing spanning seven nonconsecutive days, during

which it listened to the disputed telephone calls, took testimony from State

Police witnesses, and heard arguments of counsel. The trial court rendered a

twenty-two-page written decision in which it ruled that although "better efforts

could have been utilized in the monitoring" of a "hand full of calls," the State

Police monitors did not violate the Wiretap Act.

After carefully reviewing the record in light of the arguments of the

parties and applicable principles of law, we affirm the trial court’s ruling with

respect to the specific calls analyzed in the court’s well-reasoned written

decision. However, for reasons that are not made clear in the record, the court

A-3149-17
5
did not analyze and rule on five calls challenged by defendants that were

played and discussed at the suppression hearing. We therefore are constrained

to remand the matter for the trial court to make findings of fact and

conclusions of law with respect to those five disputed phone calls that are not

specifically addressed in its May 17, 2016 written decision.

Furthermore, with respect to call #1,117 made on March 18, 2013, the

court's ruling that the monitoring of the call was not unreasonable appears to

have been contingent upon the State providing additional information that the

parties to that call had previously discussed criminal activity. The record

before us does not indicate whether the State complied with the trial court's

instruction to supply that additional information. We therefore remand for the

trial court to make definitive findings with respect to this particular call.

In addition to the minimization contentions, defendants argue the State

failed to comply with the statutory requirement to immediately seal the wiretap

recordings. The wiretap authorization expired on April 3, 2013. On that date,

the State asked the Assignment Judge to seal the recordings. The judge

directed the State to return several days later. The State complied with that

instruction and the judge sealed the recordings on April 9, 2013. We affirm

A-3149-17
6
the trial court's ruling that the State provided a satisfactory explanation for the

six-day delay and thus did not violate the Wiretap Act.

In addition to the wiretap-related contentions, defendant Thomas appeals

from the denial of his motion to suppress illicit drugs found in a warrant search

of a vehicle in which he was a passenger. Thomas first argued to the trial

court that the vehicle was unlawfully stopped. After the trial court took

testimony at the suppression hearing, the defense submitted a supplemental

brief arguing that the probable cause set forth in the search warrant application

was tainted because the drug detection canine unlawfully entered the vehicle.

The trial court addressed the canine sniff contention and found the dog

entered the vehicle unlawfully. The court nonetheless ruled there was

adequate probable cause to support the ensuing search warrant application

based on information obtained from independent sources. Because the dog

sniff issue was not raised until after the police witnesses had testified at the

suppression hearing, we conclude the State was deprived an opportunity to

present testimony concerning the circumstances in which the dog examined the

vehicle. Importantly, the State had no reason to clarify on the record whether

the dog alerted to the presence of controlled dangerous substances (CDS) after

first examining the exterior of the vehicle. Accordingly, we deem it necessary

A-3149-17
7
to remand the matter for a new hearing to establish the exact circumstances

and timing of the dog scent examination.

With respect to the trial court's conclusion that the search warrant can be

sustained based on information from sources independent of the canine sniff,

the State acknowledges the court did not consider and make findings with

respect to two of the three elements that must be established by clear and

convincing evidence to invoke the independent source exception to the

exclusionary rule under State v. Holland, 176 N.J. 344 (2002). We therefore

remand the matter for the court to make findings of fact and conclusions of law

with respect to all three prongs of the independent source doctrine.

Defendant Virgil appeals from the denial of her motion to withdraw her

guilty plea on the grounds she received a sentence of community service that

was not explicitly contemplated in her plea agreement. We affirm the denial

of her motion to withdraw her guilty plea for the reasons explained in the trial

court's oral opinion. Virgil also appeals from the denial of her motion for a

mistrial based on prosecutorial misconduct during the trial, which was

interrupted when defendant and her trial co-defendants pled guilty. Virgil did

not preserve the right to challenge the denial of her mistrial motion and we

therefore decline to consider that contention on appeal.

A-3149-17
8
 I.

We briefly summarize the relevant circumstances surrounding each

appeal:

Derek Fuqua

Derek Fuqua was the alleged leader of the drug trafficking operation.

He was charged in the State Grand Jury indictment with: first-degree

racketeering, N.J.S.A. 2C:41-2(c) and (d); second-degree conspiracy to

distribute or possess with intent to distribute CDS, N.J.S.A. 2C:5-2; first-

degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3; first-degree

distribution of CDS, N.J.S.A. 2C:35-5(a)(1), (b)(1), and (c); first-degree

possession with intent to distribute CDS (heroin), N.J.S.A. 2C:35-5(a)(1),

(b)(1), (c), and N.J.S.A. 2C:2-6; first-degree possession with intent to

distribute CDS (cocaine), N.J.S.A. 2C:35-5(a)(1), (b)(1), and N.J.S.A. 2C:2-6;

first-degree maintaining or operating a CDS production facility, N.J.S.A.

2C:35-4 and N.J.S.A. 2C:2-6; second-degree distribution of CDS, N.J.S.A.

2C:35-5(a)(1) and (b)(2); second-degree unlawful possession of a weapon,

N.J.S.A. 2C:58-5 and N.J.S.A. 2C:39-5(b); second-degree possession of

weapons during commission of certain crimes, N.J.S.A. 2C:35-5, N.J.S.A.

2C:39-4.1(a), and N.J.S.A. 2C:2-6; third-degree distribution of CDS on or

A-3149-17
9
within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree

maintaining a fortified premises, N.J.S.A. 2C:35-4.1 and N.J.S.A. 2C:2-6;

second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b); and

second-degree financial facilitation of criminal activity (money laundering),

N.J.S.A. 2C:21-25(a), (b), and N.J.S.A. 2C:2-6.

On June 10, 2016, Derek Fuqua pled guilty to the first-degree leader of a

narcotics trafficking network charge pursuant to a negotiated agreement. In

exchange for the guilty plea, the State agreed to dismiss the remaining charges

and to recommend a twenty-four-year state prison term with a twelve-year

period of parole ineligibility. Defendant was sentenced in accordance with the

plea agreement in February 2018.

Through counsel, he raises the following contentions for our

consideration:

POINT I

THE STATE FAILED TO FOLLOW PROCEDURES
STRICTLY REQUIRED BY THE WIRETAP ACT,
THEREFORE THESE RECORDINGS MUST BE
SUPPRESSED.

A. THE STATE FAILED TO MINIMIZE THE
INTERCEPTED RECORDINGS
PURSUANT TO THE WIRETAP ACT.

A-3149-17
10
 B. SUPPRESSION IS REQUIRED DUE TO
THE FAILURE TO SEAL THE
RECORDINGS IN A TIMELY MANNER IN
VIOLATION OF THE WIRETAP ACT.

Derek Fuqua also submitted a supplemental pro se merits brief, in which

he contends:

POINT I

IN MAKING REPEATED FINDINGS THAT
WIRETAP MONITORS SHOULD HAVE
ELIMINATED OR FURTHER MINIMIZED CALLS
THAT WERE NOT RELEVANT TO THE OFFENSES
SPECIFIED IN THE WIRETAP ORDER, THE TRIAL
COURT COMMITTED LEGAL ERROR BY
FAILING TO ORDER THE SUPPRESSION OF ALL
COMMUNICATIONS SEIZED IN CONNECTION
TO THE WIRETAP UNDER N.J.S.A. 2A:156A-21.

[POINT II]

THE TRIAL COURT COMMITTED LEGAL ERROR
IN RULING THAT: (1) THE ATTORNEY-CLIENT
PRIVILEGE DOES NOT EXTEND TO AN
ATTORNEY'S SECRETARY ACTING AS AN
INTERMEDIARY BETWEEN DEFENDANT AND
HIS ATTORNEY; (2) UNLESS UNLAWFULLY
INTERCEPTED COMMUNICATIONS BETWEEN A
CLIENT AND HIS ATTORNEY DISCLOSES
MATTERS INVOLVING TRIAL STRATEGY IT
DOES NOT VIOLATE THE WIRETAP ACT OR THE
ATTORNEY-CLIENT PRIVILEGE; AND (3)
SUPPRESSION OF THE WIRETAP WAS NOT
REQUIRED UNDER N.J.S.A. 2A:156A-21 WHERE A
COURT FINDS THAT THE WIRETAP ACT
PROVISION(S) HAVE BEEN VIOLATED.

A-3149-17
11
 Tyquan Fuqua

In April 2013, State Police executed a search warrant of Tyquan Fuqua's

residence. The probable cause for the search warrant was based on

information learned from wiretap interceptions. He was charged in the State

Grand Jury indictment with first-degree racketeering, N.J.S.A. 2C:41-2(c) and

(d); second-degree conspiracy to distribute or possess with intent to distribute

CDS, N.J.S.A. 2C:35-5(a)(1), (b)(1), (c), and N.J.S.A. 2C:5-2; third-degree

possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(3);

third-degree possession with intent to distribute on or near school property,

N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7; third-degree maintaining a fortified

premises, N.J.S.A. 2C:35-4.1; and second-degree money laundering, N.J.S.A.

2C:21-25(a), (b), and N.J.S.A. 2C:2-6.

Tyquan Fuqua and co-defendant Rashaun Bryant 2 moved to dismiss

several counts of the indictment and for a hearing pursuant to Franks v.

Delaware. 3 The trial court denied both motions, concluding in a written

opinion that the State had presented to the grand jury a prima facie case of

racketeering, conspiracy, possession of CDS with intent to distribute,

2
Co-defendant Rashaun Bryant is not a party to this appeal.
3
438 U.S. 154 (1978). The Franks issue is not before us in this appeal.
A-3149-17
12
possession of CDS on or near school property, maintaining a fortified premise,

and money laundering.

On June 10, 2016, pursuant to a negotiated agreement, Tyquan Fuqua

pled guilty to the count charging third-degree possession of CDS with intent to

distribute. The State agreed to dismiss the remaining charges. On January 12,

2018, the court sentenced defendant to a three-year prison term in accordance

with the plea agreement.

Tyquan Fuqua raises the following contention for our consideration:

POINT I

THE TRIAL COURT IMPROPERLY DENIED
DEFENDANT'S MOTION TO SUPPRESS THE
WIRETAP EVIDENCE.

Trevis Thomas

On March 18, 2013, Jersey City police officers, acting at the behest of

the State Police, initiated a stop of a vehicle in which Thomas was a passenger.

A drug detection canine was brought to the scene and alerted to the presence of

CDS in the vehicle. Police then obtained a warrant to search the vehicle,

which revealed CDS in a hidden compartment.

Thomas was charged in the State Grand Jury indictment with first-degree

racketeering, N.J.S.A. 2C:41-2(c); second-degree conspiracy to distribute a

A-3149-17
13
controlled dangerous substance, heroin, N.J.S.A. 2C:5-2; first-degree

possession with the intent to distribute a controlled dangerous substance,

heroin, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), N.J.S.A. 2C:35-5(c),

and N.J.S.A. 2C:2-6; and second-degree money laundering, N.J.S.A. 2C:21-

25(a), N.J.S.A. 2C:21-25(b), and N.J.S.A. 2C:2-6.

Defendant filed a motion to suppress the CDS found in the vehicle. The

trial court convened a two-day suppression hearing on May 18 and June 3,

2015, after which the court rendered a written opinion denying the suppression

motion.

Defendant’s jury trial commenced on May 17, 2017. He was tried along

with co-defendant Virgil and another co-defendant, Shakera Styles. 4 On May

23, 2017, in mid-trial, Thomas pled guilty to the count of the indictment

charging him with racketeering. During the plea hearing, defendant expressly

preserved the right to appeal the denial of his motion to suppress the fruits of

the vehicle search and the denial of his co-defendants' motion to suppress the

4
Co-defendant Styles is not a party to this appeal.

A-3149-17
14
evidence derived from the wiretap interceptions based on the alleged

minimization violations. 5

Thomas raises the following contentions for our consideration:

POINT I

THE MOTION JUDGE ERRED IN DENYING
SUPPRESSION OF THE EVIDENCE SEIZED
FROM THE VAN BECAUSE EACH PRONG OF
THE INDEPENDENT-SOURCE TEST WAS NOT
ESTABLISHED.

A. THE MOTION JUDGE FAILED TO
SCRUPULOUSLY APPLY EACH PRONG OF
THE INDEPENDENT-SOURCE EXCEPTION,
AS REQUIRED UNDER STATE V.
HOLLAND, 176 N.J. 344 (2009).

B. BECAUSE THE STATE FAILED TO
ESTABLISH ALL THREE PRONGS OF THE
INDEPENDENT-SOURCE EXCEPTION,
SUPPRESSION IS REQUIRED. IN THE
ALTERNATIVE, THE MATTER MUST BE

5
As we have noted, Thomas did not join in his co-defendants’ motion to
suppress the wiretap evidence based on the alleged minimization violations,
and thus did not participate in that suppression hearing. As a general matter, a
defendant who has not raised an issue in the Law Division will not be
permitted to raise that issue on appeal unless he or she demonstrates plain error
that was "clearly capable of producing an unjust result." R. 2:10-2; see also
State v. Macon, 57 N.J. 325, 336 (1971). In this instance, however, because
the trial court accepted Thomas's guilty plea that expressly preserved the right
to appeal the denial of co-defendants’ motion to suppress the wiretap evidence,
we consider Thomas’s contention on appeal as if he had participated in the
motion to suppress the wiretap evidence.

A-3149-17
15
 REMANDED FOR THE MOTION JUDGE TO
CONDUCT A PROPER INDEPENDENT-
SOURCE ANALYSIS.

POINT II

THE MOTION JUDGE ERRED IN DENYING
SUPPRESSION OF WIRETAP EVIDENCE
TAINTED BY THE STATE'S FAILURE TO
MINIMIZE AN INTERCEPTED TELEPHONE CALL
MADE BY A CO[-]DEFENDANT TO HIS
LAWYER'S OFFICE.

Chanell Virgil

Defendant Virgil was charged in the State Grand Jury indictment with

first-degree racketeering, N.J.S.A. 2C:41-2(c) and N.J.S.A. 2C:41-2(d);

second-degree conspiracy to distribute a controlled dangerous substance,

heroin, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:35-10(a)(1); and second-degree

money laundering, N.J.S.A. 2C:21-25(a) and N.J.S.A. 2C:21-25(b).

On May 17, 2017, Virgil proceeded to trial along with co-defendants

Thomas and Styles. During the State's opening, Virgil's counsel objected to

remarks made by the prosecutor in his opening statement and moved for a

mistrial. The trial court found the deputy attorney general's comment was

inappropriate but denied the motion for a mistrial. Instead, the court gave a

limiting instruction to the jury.

A-3149-17
16
 As we have already noted, on May 23, 2017, the trial was interrupted

when Virgil entered a guilty plea to the count of the indictment charging third-

degree conspiracy to possess CDS. On August 11, 2017, the court sentenced

Virgil to a three-year term of probation in accordance with the plea agreement.

She was ordered to perform fifty hours of community service as one of the

conditions of probation. The prospect of performing community service was

not specifically mentioned in the terms of the plea agreement or during the

plea colloquy.

Subsequently, defendant filed a motion to withdraw her guilty plea,

contending the sentence imposed did not match her reasonable expectations

from her negotiated agreement. On January 12, 2018, the sentencing judge

held a hearing and rendered an oral decision denying Virgil's motion to

withdraw her guilty plea.

Virgil raises the following contentions for our consideration:

POINT I

THE TRIAL JUDGE'S DENIAL OF DEFENDANT'S
MOTION TO WITHDRAW HER GUILTY PLEA
WAS ERRONEOUS WHERE THE SENTENCE
IMPOSED DID NOT MEET HER REASONABLE
EXPECTATION OF THE NEGOTIATED PLEA
AGREEMENT.

A-3149-17
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 POINT II

THE MOTION JUDGE'S FAILURE TO CONSIDER
THE SUBJECTIVE GOOD FAITH OF THE
WIRETAP MONITORS WAS REVERSIBLE
ERROR.

POINT III

THE TRIAL JUDGE ERRED WHERE [HE] DID
NOT DECLARE A MISTRIAL AFTER THE
DEPUTY ATTORNEY GENERAL'S OPENING
STATEMENT WHICH, BY HIS INFLAMMATORY
AND ARGUMENTATIVE REMARKS,
SUBSTANTIALLY PREJUDICED DEFENDANT'S
FUNDAMENTAL RIGHT TO HAVE A JURY
FAIRLY ASSESS THE PERSUASIVENESS OF HER
CASE.

II.

We first consider defendants' contentions that their rights under the

Wiretap Act were violated. 6 Defendants raise three distinct arguments that we

address in turn: (1) the State improperly intercepted a telephone call to an

attorney's office, constituting a per se violation of the Wiretap Act; (2) the

wiretap monitors failed to properly minimize specified personal telephone

conversations that were not relevant to criminal activity; and (3) the State

6
The motion was brought by co-defendants Derek Fuqua, Cynthia Fuqua,
Tyquan Fuqua, Marion Darby, Rashaun Bryant, Jennifer Morfa, Andre Childs,
Shakera Styles, and Chanell Virgil. Co-defendants Cynthia Fuqua, Darby,
Bryant, Morfa, Childs, and Styles are not parties to this appeal.

A-3149-17
18
failed to immediately seal the recorded interceptions at the expiration of the

wiretap order.

A.

We first address defendants' contention that the State improperly

intercepted a call, Call #18,179, that Derek Fuqua placed to a law firm.

Defendants contend this interception violated the attorney-client privilege and

constitutes a violation of N.J.S.A. 2A:156A-11,7 which generally prohibits the

interception of attorney-client conversations.

7
N.J.S.A. 2A:156A-11, which affords special protection to privileged
communications, provides in pertinent part:

If the facilities from which, or the place where, the
wire, electronic or oral communications are to be
intercepted are being used, or are about to be used, or
are leased to, listed in the name of, or commonly used
by . . . an attorney-at-law . . . no order [for
interception] shall be issued unless the court, in
addition to the matters provided in section 10 of [L.
1968, c. 409 ( N.J.S.A. 2A:156A-10)], determines that
there is a special need to intercept wire, electronic or
oral communications over such facilities or in such
places. Special need as used in this section shall
require in addition to the matters required by section
10 of [L. 1968, c. 409 (N.J.S.A. 2A:156A-10)], a
showing that the . . . attorney-at-law. . . is personally
engaging in or was engaged in over a period of time as
a part of a continuing criminal activity or is
committing, has or had committed or is about to
commit an offense[.]
A-3149-17
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We reproduce verbatim the disputed call:

FEMALE: Law firm.

DEREK FUQUA: Yeah, my name is Derek Fuqua.
I'm calling because I'm on the Woodbridge court
schedule.
I'm trying to find out what court it is there.

FEMALE: Okay, hold on.

DEREK FUQUA: All right.

[Defendant is placed on hold]

FEMALE: Hey, hi. So, good morning. You said you
were in Woodbridge court?

DEREK FUQUA: Yes.

FEMALE: And did you speak with anyone regarding
the court date?

DEREK FUQUA: Um, I'm—I just came to the court
date (indiscernible).

FEMALE: Okay. All right. Your name was on the
calendar?

DEREK FUQUA: (Indiscernible) I'm just walking in.
I was caught in traffic. That's all I'm trying to see
(indiscernible).

FEMALE: Okay, how do I spell your last name?

[Defendant spells his name]

FEMALE: Ah, okay. All right.

A-3149-17
20
 DEREK FUQUA: Yes.

FEMALE: We have a 6:45 for you on the calendar,
actually at night.

DEREK FUQUA: Oh, it is?

FEMALE: Uh-huh.

DEREK FUQUA: All right.

FEMALE: Night court.

DEREK FUQUA: All right, no problem. Thanks.

FEMALE: Okay. Thanks, bye.

The State Police monitor listening to the call live believed that Derek

Fuqua was speaking to a court representative. 8 We agree with the trial court

that this interception did not violate either the attorney-client privilege or the

Wiretap Act. "[T]he attorney-client privilege generally applies to

communications (1) in which legal advice is sought, (2) from an attorney

acting in his capacity as a legal advisor, (3) and the communication is made in

confidence, (4) by the client." Hedden v. Kean Univ., 434 N.J. Super. 1, 10

(App. Div. 2013). This privilege does not protect all communications with a

8
The record before us does not identify the law firm and does not indicate
whether Derek Fuqua was represented by that firm or whether Fuqua contacted
the firm because the municipal court judge was associated with it.
A-3149-17
21
law firm. Rather, it only protects communications made between a "lawyer

and his client in the course of that relationship and in professional confidence."

Tractenberg v. Twp. of W. Orange, 416 N.J. Super. 354, 375 (App. Div. 2010)

(quoting N.J.R.E. 504(1)). Although in certain circumstances the privilege

may extend to interactions between the client and a lawyer's agent—such as an

investigator or a secretary—the "sine qua non of the privilege is that the client

has consulted the lawyer in the latter's capacity as an attorney." L.J. v. J.B.,

150 N.J. Super. 373, 377 (App. Div. 1977); see also Fellerman v. Bradley, 99

N.J. 493, 499 (1985) ("For a communication to be privileged it must initially

be expressed by an individual in his capacity as a client in conjunction with

seeking or receiving legal advice from the attorney in his capacity as such,

with the expectation that its content remain confidential.").

The transcript of the intercepted call confirms that although Derek Fuqua

contacted a law firm and spoke with a secretary or receptionist employed by

the firm, he did not do so while in the course of seeking or discussing legal

advice. Rather, defendant merely sought information regarding the scheduling

of a court date and was provided with that information. Further, no

confidential information was discussed. Accordingly, we affirm the trial

court's ruling that listening to this call did not violate the attorney -client

A-3149-17
22
privilege or the Wiretap Act provision designed to protect privileged

communications.

B.

We turn next to defendants' contention that the wiretap monitors

improperly minimized non-relevant phone calls. We begin by acknowledging

the legal principles that guide our review of alleged Wiretap Act violations.

As a general matter, the scope of our review of the denial of any suppression

motion is limited. State v. Handy, 206 N.J. 39, 44–45 (2011). We "must

uphold the factual findings underlying the trial court's decision, so long as

those findings are 'supported by sufficient credible evidence in the record.'"

State v. Evans, 235 N.J. 125, 133 (2018) (quoting State v. Elders, 192 N.J.

224, 243 (2007)). "An appellate court 'should give deference to those findings

of the trial judge which are substantially influenced by his [or her] opportunity

to hear and see the witnesses and to have the "feel" of the case, which a

reviewing court cannot enjoy.'" Elders, 192 N.J. at 244. A trial judge's

credibility determinations therefore should be upheld if they are supported by

sufficient, credible evidence. State v. S.S., 229 N.J. 360, 374 (2017).

In contrast, we review the trial court's legal conclusions de novo. Id. at

380. Because issues of law "do not implicate the fact-finding expertise of the

A-3149-17
23
trial courts, appellate courts construe the Constitution, statutes, and common

law de novo—with fresh eyes—owing no deference to the interpretive

conclusions of trial courts, unless persuaded by their reasoning." Ibid.

(quoting State v. Morrison, 227 N.J. 295, 308 (2016)) (internal quotation

marks omitted). Accordingly, we are not bound by a trial court's

interpretations of the legal consequences that flow from established facts. See

Manalapan Realty LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In the event of a mixed question of law and fact, we review a trial court's

determinations of law de novo but will not disturb a court's factual findings

unless they are "clearly erroneous." State v. Marshall, 148 N.J. 89, 185

(1997).

Turning to substantive legal principles, our Supreme Court has made

clear that the Wiretap Act "must be strictly construed to safeguard an

individual's right to privacy." State v. Ates, 217 N.J. 253, 268 (2014) (citing

State v. Worthy, 141 N.J. 368, 379–80 (1995)). Wiretap orders must "require

that such interception begin and terminate as soon as practicable and be

conducted in such a manner as to minimize or eliminate the interception of

such [non-relevant communications] by making reasonable efforts, whenever

A-3149-17
24
possible, to reduce the hours of interception authorized by said order."

N.J.S.A. 2A:156A-12(f).

This process is commonly referred to as "minimization." In State v.

Catania, our Supreme Court explained:

In addition to being required by statute, minimization
is thus necessary to safeguard an important
constitutional value: the privacy right of those who
use the telephone to be secure from indiscriminate
wiretapping that intercepts all conversations, no
matter how non-relevant or personal, in violation of
the Fourth Amendment proscription against
unreasonable searches and seizures.

[85 N.J. 418, 429 (1981).]

The Court stressed that when executing a wiretap order, "police must

make reasonable efforts to minimize intrinsically as well as extrinsically." Id.

at 434. "'Extrinsic' minimization is accomplished by simply limiting the hours

and total duration of interception, while 'intrinsic' minimization is

accomplished by terminating the interception of individual phone calls within

those hours as it becomes apparent to the monitors that the call is not relevant

to the investigation." Id. at 429. The Catania Court further explained:

[o]ne [method of intrinsic minimization] is "spot
monitoring," a technique whereby the monitoring
agent stops listening to a conversation if, after a short
while, it appears to be irrelevant. However, rather
than terminating the interception indefinitely, the

A-3149-17
25
 agent continues to tune in periodically to see if the
conversation has turned to criminal matters. If it has,
then he [or she] resumes full interception. Spot
monitoring would protect the privacy of innocent
callers without providing a loophole through which
criminals could avoid detection by prefacing their
conversations with innocent small talk. . . . Moreover,
spot monitoring is highly persuasive evidence of a
good-faith intention on the part of the monitors to
minimize.

[Id. at 446.]

Extrinsic minimization is essentially determined by the judge issuing the

wiretap authorization, who sets the hours during which calls made to or from

designated telephone facilities may be intercepted. In this appeal, we focus on

the State Police monitors' intrinsic minimization efforts. To survive judicial

scrutiny, those intrinsic minimization efforts must be both "objectively

reasonable" and made in "subjective good faith." Id. at 438.

Although the requirements of the Wiretap Act must be strictly enforced,

the Court in Catania acknowledged that judicial review of intrinsic

minimization does not impose an impracticable standard that might "force

monitors to terminate prematurely their interception of phone calls which

begin on an innocent note but later turn to discussions of criminal activity."

Id. at 445. Importantly, the Court recognized that "monitors are not prophets,

and thus they are not expected to anticipate and screen out all non -relevant

A-3149-17
26
phone calls. All they are expected to do is make reasonable efforts to identify

innocent, non-relevant phone calls and minimize their interception." Ibid.

The Court in Catania adopted the three-pronged test devised in Scott v.

United States, 436 U.S. 128 (1978), to determine whether wiretap monitors

made reasonable efforts to minimize interceptions of non-relevant calls. Id. at

432–34 (1981). Under this analytical framework, reviewing courts must

consider: (1) "the nature of the individual phone calls"; (2) "the purpose of the

wiretap"; and (3) "the reasonable expectation of the [law enforcement

monitors] as to what they would overhear based on the information available

to them at the time of the wiretap . . . ." Id. at 433–34.

The first factor takes into account that the nature of a particular call may

make it difficult to minimize. Id. at 433. Reviewing courts must consider, for

example, whether the language used in the conversation is "ambiguous,"

"guarded," or "cryptic." Ibid. Additionally, some calls may be of short

duration, providing the monitor with little opportunity to determine the call's

relevance to criminal activity. Ibid.; see also State v. Pemberthy, 224 N.J.

Super. 280, 300 (App. Div. 1988) ("The fact that entire conversations of brief

duration were recorded . . . [does] not affect the overall intent to minimize.").

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27
 The second factor in the Scott/Catania analytical framework—the

purpose of the wiretap—recognizes that broader electronic surveillance efforts

are justified when necessary to "determine the full scope of [an] enterprise"

when police are investigating a conspiracy. Catania, 85 N.J. at 433. A CDS

distribution conspiracy may entail communications with drug suppliers, co -

conspirators, and established or potential new customers. The inherent nature

of a narcotics conspiracy, in other words, suggests the criminal enterprise may

involve a large number of participants arrayed along the drug distribution

hierarchy, ranging from end-use purchasers, street-level retailers, mid-level

wholesalers, to upper-echelon traffickers.

The third factor, which requires reviewing courts to consider the

"reasonable expectations" of the monitors, recognizes that wiretap monitors

may be justified in intercepting a broader scope of calls in the beginning of a

wiretap investigation before "patterns of relevant and non-relevant phone

calls" emerge. Id. at 434. Those patterns allow monitors to more precisely

tailor their minimization efforts as they gain experience in understanding the

communication practices and tendencies of the targets. These emerging

patterns may show that specific targets routinely discuss both relevant and

non-relevant topics in their conversations. In other words, monitors may learn

A-3149-17
28
over the course of the wiretap investigation that certain targets often discuss

both personal matters and matters relating to the business of drug trafficking in

a single conversation. Such a pattern would justify intercepting a broader

range of calls and listening in on a greater proportion of an individual call,

comparable to the scope of interception that is permitted at the outset of the

wiretap investigation before any patterns are discerned.

Failure to comply with the Wiretap Act's substantive or critical

requirements results in the suppression of evidence. Worthy, 141 N.J. at 381–

86; N.J.S.A. 2A:156A-21. The suppression remedy for a minimization

violation is strictly imposed. Before Catania, the State's failure to minimize

interception of non-relevant conversations resulted only in the suppression of

those particular conversations, rather than the entire wiretap investigation. See

State v. Dye, 60 N.J. 518, 539–42 (1972). The Court in Catania, construing

remedial legislative amendments to the Wiretap Act adopted after Dye,

rejected that approach, noting:

The flaw in this approach was that it would not deter
the State from disregarding the minimization
provision, because only innocent and non-relevant
conversations would be suppressed while the relevant
ones would remain admissible. The Legislature
responded by amending N.J.S.A. 2A:156A-21 to
provide that any minimization violation would result
in the suppression of the "entire contents of all . . .

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29
 communications." The Legislature concluded that
only by avoiding such a fragmented approach to
wiretapping such as that espoused by Dye could
minimization violations be deterred. . . . That logic is
applicable here. In keeping with this legislative desire
for a unitary, rather than a fragmented, approach to
wiretapping, we conclude that a defendant who was
party to at least one conversation, innocent or
incriminating, during the course of a wiretap has
standing to suppress the entire wiretap results because
of the State's failure to minimize its interception of
any conversations during the course of that wiretap.

[85 N.J. at 426 (emphasis added) (internal citations
omitted).]

Accordingly, if a reviewing court finds a minimization violation, the

entire contents of all intercepted communications and evidence derived

therefrom must be suppressed. See Worthy, 141 N.J. at 387. This rule "thus

manifests an unequivocal legislative intent to regulate wiretapping as strictly

as possible." Catania, 85 N.J. at 438 (citing S. Judiciary Comm. Statement to

S. 1417 (L. 1975, § 13)). The Supreme Court has further acknowledged that

the Wiretap Act's "exclusionary rule is not conditioned on a predicate finding

of an intentional or deliberate violation or evasion of the Act's requirements."

Worthy, 141 N.J. at 385.

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30
 C.

With those guiding principles in mind, we next consider the facts that

were elicited at the suppression hearing. The initial wiretap order was issued

on February 6, 2013 and was renewed on March 4, 2013. The wiretap ran for a

total of sixty-five days and permitted interception at all hours of the day, seven

days a week. At the outset, the wiretap was limited to Derek Fuqua's phone.

As the scope of the racketeering investigation expanded, the wiretap

authorization order was amended to include phones belonging to Tyquan

Fuqua, Rashaun Bryant, and Kevin Harrell. 9

State Police Detective Dan Connolly, who supervised the wiretap

investigation, testified that the monitors attended a meeting at which a deputy

attorney general instructed them as to proper intrinsic minimization

procedures. The monitors were instructed, for example, that they were not

permitted to listen to calls "involving attorneys, doctors, or clergy," but were

told that if they were "unsure what [was] being discussed, [they were to]

continue to monitor the call until some additional patterns and practices [we]re

established."

9
Co-defendants Rashaun Bryant and Kevin Harrell are not parties to this
appeal.

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31
 With respect to those patterns and practices, Detective Connolly testified

that Derek Fuqua discussed both personal matters and criminal business in his

conversations. The detective explained: "Derek Fuqua used family and close

friends, not only in a social setting, but they were also part of his criminal

conspiracy and he talked business and socially with these individuals within

the same phone call on multiple occasions." 10

State Police Detective Thomas Kulpinski testified that the wiretap was

administered through a software program called VoiceBox, which is a

"statewide network which facilitates the collection of information when

authorized by court order." Detective Kulpinski explained that to use the

electronic surveillance system, a law enforcement monitor must activate the

program's monitoring function, which would "place that particular target phone

number in a situation where if a communication would come in, the monitor

would . . . be presented with a control window that would come up when an

audio event occurs." The detective further explained that the control window

provides the monitor the ability to listen to the communication live, ignore the

communication before it occurs, or intrinsically minimize portions of a

10
We note that many of those individuals were charged in the State Grand
Jury indictment, including: Tyquan Fuqua (cousin), Cynthia Fuqua (mother),
Alfonso Fuqua (relative), Rahim Fuqua (brother), James Fuqua (relative),
Jennifer Morfa (girlfriend), and Tamara Reichard (girlfriend).
A-3149-17
32
communication as it unfolds. The latter practice, the detective explained, is

commonly referred to as spot monitoring.

Detective Kulpinski further testified that when a monitor minimizes a

communication, there is no way for him or her to listen to the conversation

during the period of minimization. As the detective explained, when the

monitor hits the minimization button, the content is "irrevocably gone from the

system."

During the course of the seven-day suppression hearing, the trial court

listened to the disputed calls that defendants claimed to be improperly

minimized and heard arguments from the parties concerning each of those

specific communications.

The trial court issued a written opinion on May 17, 2016 in which it

made detailed findings with respect to sixty-four calls. The court concluded

that while the State might have made better efforts to minimize several calls,

the monitors made reasonable efforts to adhere to their duty to minimize wi th

subjective good faith. The trial court noted, "[i]n the context of the

contemplated conspiracy involving the numerous persons of interest and the

24-hour wiretap, the monitors ultimately demonstrated good-faith and an

objectively reasonable attempt with the law." The trial court further remarked,

A-3149-17
33
"[t]he record shows reasonable good-faith attempts were made to consistently

minimize and spot check personal, irrelevant, and non-pertinent calls."

In reaching that conclusion, the trial court made specific and detailed

factual findings. 11 The court found, for example, that the monitors had been

instructed on and understood the minimization criteria set forth in Catania and

were further instructed to engage in spot-monitoring. The court viewed those

instructions as "highly persuasive evidence of good-faith intention . . . to

minimize." See Catania, 85 N.J. at 446.

The court also found that "since various family members were involved

in the conversations, and many of the calls were difficult to ascertain the

nature of the conversation, the investigators could reasonably conclude that the

conversations may be pertinent [to criminal activity]." Because the

investigation involved a conspiracy, moreover, the court noted that "broader

11
Derek Fuqua argues in his pro se supplemental merits brief that the trial
court "unquestionably found minimization violations" in fourteen calls. That
is incorrect. See also infra note 12. Defendant conflates a finding that there
was no minimization of a particular call with a finding that the statutory
minimization requirement was violated. As we have noted, the Court in
Catania recognized the short duration of a call makes it difficult for monitors
to determine relevancy. 85 N.J. at 435. Thus, the lack of minimization of a
short-duration call does not necessarily constitute a violation. Accord
Pemberthy, 224 N.J. Super. at 300 ("The fact that entire conversations of brief
duration were recorded, especially at the beginning of the investigation, did
not affect the overall intent to minimize.").
A-3149-17
34
interception [wa]s justified" because "it was necessary to ascertain a full scope

of the conspiracy and identify the participants." The court further noted that

most of the disputed calls were short in duration, and that most of the calls

deemed non-pertinent were minimized.

The trial court applied the three factors set out in Catania, concluding

they weighed in favor of finding objectively reasonable and subjectively good -

faith efforts to minimize. After carefully reviewing the record, we agree with

the trial court's application of the Scott/Catania factors with respect to all of

the disputed calls the trial court specifically analyzed in its written opinion.

The record supports the conclusion, with respect to the calls analyzed by the

trial court, that the State demonstrated both objective reasonableness and

subjective good faith.

We emphasize that, as in Catania, no clear pattern emerged as to either

non-incriminating conversations or non-relevant callers. 85 N.J. at 435. As

the trial court aptly noted, it was not "uncommon for [the callers] to discuss

personal issues with criminal business activity." That made it impossible for

monitors to minimize all non-relevant communication. Spot monitoring, after

all, is not an exact science—there is no precise mathematical formula to

inform monitors when to turn off a live call and when to turn it back on. We

A-3149-17
35
reiterate the Supreme Court's admonition in Catania: "monitors are not

prophets, and thus they are not expected to anticipate and screen out all non -

relevant phone calls. All they are expected to do is make reasonable efforts to

identify innocent, non-relevant phone calls and minimize their interception."

Id. at 445.

Viewed through that pragmatic lens, the trial court's observation that

"better efforts" could have been made in minimizing a "hand full" of calls does

not suggest the monitors violated their objective and subjective good -faith

obligations under the Wiretap Act. The trial court ultimately concluded the

monitors had not violated the Wiretap Act. 12 We agree with that conclusion.

As the Supreme Court aptly noted in State v. Burstein,

Although some additional calls might conceivably
have been minimized, we have never required the
State to minimize its interception of all non-relevant
phone calls. This would require a prescience on the
part of the police that is simply not possible. Rather,
we require only that the State make reasonable efforts
to terminate its interception of non-relevant phone

12
We note that as to call #10,797, which Derek Fuqua made to an automobile
dealership, the trial court stated "[c]learly, this call is non-pertinent and should
have been minimized." However, the court also determined, "[t]he call is of
short duration" and that "throughout the call, the defendant was placed on hold
and various auto commercials were being played over the phone system."
Read in the context of the trial court's ultimate holding, we do not interpret the
court's opinion as finding that the failure to minimize this particular call was a
violation of the Wiretap Act.
A-3149-17
36
 calls. Our review of the facts in this case convince us
that such efforts were made here.

[85 N.J. 394, 416 (1981) (emphasis added).]

In performing our review function, we strive to achieve the delicate

balance between avoiding unnecessary intrusion upon personal, non-criminal

conversations on the one hand, and the public safety interest in recording

conversations regarding criminal activity on the other hand. In reaching that

balance, we underscore that the statutory and constitutional benchmarks are

objective reasonableness and subjective good faith, not perfection as viewed

through the lens of hindsight. We also acknowledge that the trial court judge

was a specially-designated wiretap judge 13 well-experienced in the practical

administration and enforcement of the Wiretap Act. Cf. Cesare v. Cesare, 154

N.J. 394, 413 (1998) (recognizing that deference is accorded to factfinding by

13
Wiretap judges are specially designated by order of the Chief Justice
pursuant to N.J.S.A. 2A:156A-2(i), which provides:

"Judge," when referring to a judge authorized to
receive applications for, and to enter, orders
authorizing interceptions of wire, electronic or oral
communications, means one of the several judges of
the Superior Court to be designated from time to time
by the Chief Justice of the Supreme Court to receive
applications for, and to enter, orders authorizing
interceptions of wire, electronic or oral
communications pursuant to this act[.]
A-3149-17
37
Family Part judges because they possess "special jurisdiction and expertise in

family matters"); State v. Harris, 466 N.J. Super. 502, 549 (App. Div. 2021)

(according comparable deference to the findings made by Drug Court judges

"in view of their expertise in addressing 'the unique problems and needs posed

by non-violent, drug-dependent offenders'") (internal citations omitted)).

In this instance, we conclude—with respect to the calls the trial court

analyzed and definitively ruled on—that the trial court properly accounted for

all appropriate factors and circumstances under the Catania/Scott analytical

paradigm, including: the instructions given to the monitors; the expansive

nature of the drug distribution conspiracy and the large number of suspected

co-conspirators; the timing of the calls in relation to the ongoing wiretap

investigation; the established pattern and practice of the targets mixing

personal and criminal business in their conversations; the duration of the

disputed calls; the proportion of those calls that were minimized; the number

of times those calls were turned off and on again; and the percentage of non -

monitored call time. We therefore affirm the trial court's decision with two

caveats.

First, we note the trial court's conclusion that the monitoring of call

#1,117 was not unreasonable was contingent upon the court receiving

A-3149-17
38
additional information from the State. The content of that call focused on

intimate sexual relations, which unquestionably fall within the heartland of the

privacy concerns expressed in the Wiretap Act as well as Catania and its

progeny. Specifically, the trial court's written opinion reads:

Call #1[,]117 – 3/18/2013: [Two] minutes [nineteen]
seconds. Call deemed non-pertinent. It was not
minimized. Tyquan Fuqua speaks to "SB" regarding
sex. Defense argues this is a personal call. It is not
the State's business. Furthermore, this was weeks into
the wiretap. The State argues that SB was a co-
conspirator who ultimately was stopped on the New
Jersey Turnpike with Tyquan Fuqua with 12,000 bags
of [h]eroin. Additionally, the State has other calls
regarding the two individuals where they discuss
personal issues and drugs in the same call. The
[c]ourt finds the call should have been stopped and/or
monitored. The nature of the call early on was all
sexual in nature. The call is somewhat short in
duration. Clearly, the parties are discussing a personal
relationship. If the State has another call before
March 18, 2013, where the parties discuss criminal
activity, then the [c]ourt would be of the mindset that
listening to the call would not have been unreasonable.
[The court] ask[s] the State to provide this information
to the [c]ourt within [ten] days.

[(emphasis added).]

The record before us does not indicate whether the State provided the

requested information concerning earlier intercepted calls in which the

participants discussed both personal matters and CDS-related matters. Nor did

A-3149-17
39
the trial court issue a revised or supplemental opinion accounting for any such

additional information. We therefore are constrained to remand the matter for

the trial court to make additional findings, as appropriate, and to issue a

definitive ruling whether the failure to minimize this call constitutes a

violation of the Wiretap Act. If the State has not already supplied the

information requested in the trial court's written opinion, we leave to the

discretion of the trial court as to the manner by which the State shall provide

that information to the court and defense counsel. We also leave to the trial

court's discretion whether to require or accept additional submissions from the

parties or to convene a new oral argument.

Second, defendant Tyquan Fuqua identifies on appeal five calls that

were played back during the suppression hearing but were not addressed in the

court's written opinion. Specifically, the trial court did not make findings of

fact and law with respect to the following disputed calls: #46 (March 15,

2013); #514 (March 9, 2013); #523 (March 9, 2013); #11,895 (March 25,

2013); and #12,029 (March 26, 2013).

In this we decline to exercise original jurisdiction. See Tomaino v.

Burman, 364 N.J. Super. 224, 234–35 (App. Div. 2003) ("Our original

factfinding authority must be exercised only 'with great frugality and in none

A-3149-17
40
but a clear case free of doubt.'") (quoting In re Boardwalk Regency Corp.

Casino License Application, 180 N.J. Super. 324, 334 (App. Div. 1981)).

Instead, we remand the matter for the trial court to make findings of fact and

law with respect to these five calls, comparable in detail to the findings the

court made with respect to the other calls analyzed in its written decision.

We offer no opinion whatsoever on whether the State violated the

Wiretap Act's minimization requirement with respect to any of these five calls.

We leave to the discretion of the trial court whether to convene a new

evidentiary hearing or oral argument to resolve factual or legal disputes

concerning these calls. To facilitate the trial court's analysis on remand, we

direct the parties to provide the court with their appellate submissions

pertaining to these five calls if they have not already done so.

If the trial court on remand determines the Wiretap Act was violated, it

shall invoke the exclusionary remedy as required under Catania, 85 N.J. at

426, and shall vacate the defendants' guilty pleas.

D.

Finally, with respect to the alleged violations of the Wiretap Act, we

turn to defendants Derek and Tyquan Fuqua's contention the wiretap

recordings were not sealed in accordance with N.J.S.A. 2A:156A-14, thus

A-3149-17
41
requiring their suppression. 14 On April 3, 2013—the same day the wiretap

authorization order expired—the State took the recordings and associated

papers to the Assignment Judge to be sealed. The judge instructed the State to

come back on April 9, 2013, at which time the recordings were sealed.

Defendants subsequently moved to suppress the recordings, arguing the six -

day delay15 violated N.J.S.A. 2A:156A-14. Defendants appeal from the trial

court's March 16, 2016 oral opinion denying the motion on the grounds that

the State provided a satisfactory explanation for the delay. 16 We affirm

substantially for the reasons set forth in the trial court's oral opinion. We add

the following comments.

14
Defendants Thomas and Virgil did not raise this issue on appeal.
15
We note that only four of those days were business days.
16
We granted defendant Derek Fuqua's motion for leave to file a pro se reply
brief after this matter was submitted. The pro se reply brief raises new
arguments regarding the sealing delay that were not addressed in his counsel's
merits brief or his own pro se supplemental merits brief. He argues, for
example, it is "incredulous" that the Assignment Judge could direct the State to
return on a later date to seal the records and yet grant an extension of the
wiretap authorization during that time period.

"It is well-settled that introduction of a new issue by way of a reply brief
is improper." Musto v. Vidas, 333 N.J. Super. 52, 69 (App. Div. 2000); see
also State v. Smith, 55 N.J. 476, 488 (1970); Pressler & Verniero, Current N.J.
Court Rules, cmt. on R. 2:6-5 (2021). In any event, defendant's newly raised
arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-
3(e)(2).
A-3149-17
42
 N.J.S.A. 2A:156A-14 provides in pertinent part:

Immediately upon the expiration of the [wiretap
authorization] order or extensions or renewals thereof,
the tapes, wires[,] or other recordings shall be
transferred to the judge issuing the order and sealed
under [his or her] direction. . . . The presence of the
seal provided by this section, or a satisfactory
explanation for its absence, shall be a prerequisite for
the disclosure of the contents of any wire, electronic
or oral communication, or evidence derived therefrom
. . . .

[(emphasis added).]

In State v. Cerbo, the Court held that "[s]ince the delay in sealing is

tantamount to the absence of a seal under N.J.S.A. 2A:156A-14, the statutory

requirement that there be a satisfactory explanation for such 'absence' is

applicable to the delay in sealing." 78 N.J. 595 (1979). As the plain langu age

of N.J.S.A. 2A:156A-14 makes clear, wiretap recordings are not automatically

suppressed when they are not sealed "immediately." Rather, the failure to

immediately seal the records can be excused, provided there is a satisfactory

explanation. The plain text also makes clear that sealing is done "under the

[judge's] direction."

In this instance, the gravamen of the State's argument is not that a

wiretap judge was unavailable. Rather, the State argues it was justified in

A-3149-17
43
complying with the directions given by the Assignment Judge who issued the

original wiretap authorization order.

We believe the State was not obliged to disregard the Assignment

Judge's unambiguous instruction and find another judge authorized to seal the

recordings. We agree with the trial court that the State's dutiful compliance

with the Assignment Judge's explicit direction was appropriate and constitutes

a satisfactory explanation for the delay in sealing the recordings. We note that

another provision of the Wiretap Act relating to sealing provides in pertinent

part:

Applications made and orders granted pursuant to this
act and supporting papers shall be sealed by the court
and shall be held in custody as the court shall direct
and shall not be destroyed except on order of the court
and in any event shall be kept for 10 years. They may
be disclosed only upon a showing of good cause
before a court of competent jurisdiction.

[N.J.S.A. 2A:156A-15 (emphasis added).]

This provision—which pertains to the safekeeping of wiretap records after

they are sealed—also expressly recognizes the authority of the wiretap judge

to direct how confidential wiretap-related records are to be held by the State.

We add that defendants' reliance on our decision in State v. Barisse 173

N.J. Super. 549 (App. Div. 1980), aff'd sub. nom. State v. Burstein, 85 N.J.

A-3149-17
44
394 (1981), is misplaced. We commented in Barisse, "sealing can be, and in

the absence of the availability of the issuing judge[,] must be[] obtained from

another judge." 173 N.J. Super. at 551. However, the formulation of that

principle was tempered by the Supreme Court in Burstein, which explained the

sealing statute "should henceforth be construed so as to allow the tapes to be

sealed by any authorized judge when the judge who issued the order is

unavailable. . . ." 85 N.J. at 402 n.2 (emphasis added).

We do not read the Supreme Court's reformulation in Burstein to require

the State find another wiretap judge in contravention of a direct instruction by

the Assignment Judge to return with the recordings for sealing at a later date.

We thus conclude it was objectively reasonable for the State to comply with

and rely on the Assignment's Judge's specific direction. Cf. United States v.

Ojeda Rios, 495 U.S. 257, 266 (1990) (explaining that to establish a

"satisfactory explanation" under the analogous provision of the federal wiretap

statute, the prosecutor "is not required to prove that a particular understanding

of the law is correct but rather only that its interpretation was objectively

reasonable at the time").

We also agree with the trial court that in this instance, there was only a

minor delay in sealing the wiretap recordings and that there is no suggestion

A-3149-17
45
the recordings were tampered with while in the State's custody prior to their

sealing by the court. We note that federal cases have permitted significantly

longer delays in sealing wiretap records under the analogous federal statute.

See e.g. United States v. Pedroni, 958 F.2d 262, 265 (9th Cir. 1992) (admitting

recordings after fourteen-day delay); United States v. Lawson, 545 F.2d 557,

564–65 (7th Cir. 1975) (admitting recordings after fifty-seven-day delay); see

also Ates, 217 N.J. at 269 ("Because the Wiretap Act is closely modeled after

Title III [the federal wiretap law], we give careful consideration to federal

decisions interpreting the federal statute.") (citing In re Wire Commc'n, 76 N.J.

266, 262 (1978)).

III.

We next address Thomas's contention the trial court erred in denying his

motion to suppress CDS discovered during the search of a vehicle operated by

co-defendant Eddie Wall 17 in which Thomas was a passenger. Thomas now

argues the discovery of the CDS in the vehicle was the fruit of the unlawful

deployment of a drug detection canine. We note this was not the legal theory

that Thomas and Wall first argued before the Law Division judge. Rather, the

gravamen of their argument initially was that the "directed" stop was unlawful

17
Wall is not a party to this appeal.

A-3149-17
46
because the detaining officers had not observed a motor vehicle violation and

the stop was a pretext. 18 Thomas and Wall further argued the plain view

seizure of the CDS on the floor was unlawful because the officers were not

legitimately present at the moment they observed the CDS by reason of the

unlawful stop. They likewise argued that but for the unlawful stop, the

officers would not have noticed an apparent trap door indicating a hidden

18
The term "directed stop" refers to a planned investigative detention where
uniformed patrol officers simulate a spontaneous motor vehicle stop for a
traffic infraction under Delaware v. Prouse, 440 U.S. 648 (1979). This is done
so that the vehicle occupants are not alerted to the fact that they are the
subjects of an ongoing criminal investigation.
Although such motor vehicle encounters are pretextual, they are not
unlawful—even when a motor vehicle infraction is not committed—so long as
there is reasonable articulable suspicion to believe a vehicle occupant is
involved in unlawful activity to justify an investigative detention under Terry
v. Ohio, 392 U.S. 1 (1968). See Whren v. United States, 517 U.S. 806, 813
(1996) (holding reasonableness of stop does not depend on subjective
motivations of officer and permitting police to investigate criminal activity
under the guise of enforcing traffic laws); State v. Bruzzese, 94 N.J. 210, 219
(1983) ("We hold that the proper inquiry for determining the constitutionality
of a search-and-seizure is whether the conduct of the law enforcement officer
who undertook the search was objectively reasonable, without regard to his or
her underlying motives or intent."); see also United States v. Hensley, 469 U.S.
221 (1985) (recognizing a collective law enforcement knowledge doctrine that
permits an officer to act on the basis of information provided by another
officer or bulletin).
Thomas does not contend on appeal the stop was unlawful on this
ground and thus has abandoned the "pretext stop" argument. See Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on
appeal is deemed waived.").
A-3149-17
47
compartment. Accordingly, they argued the ensuing search warrant was a fruit

of the unlawful stop.

Thomas and Wall did not initially contend their rights were violated by

the manner in which the dog inspected the vehicle. Regarding that

examination, Thomas in his Law Division brief merely stated, "[t]he officers

present at the scene requested the assistance of a narcotics canine and Officer

D. Williams arrived on the scene with his canine partner Samu who allegedly

gave a positive indication on the right interior portion of the vehicle."

Thomas's Law Division brief contained no further mention of the canine

inspection nor did it offer any legal argument claiming the use of the canine

was improper. As we next explain, the contention that the canine unlawfully

entered the vehicle emerged well after the suppression hearing was completed.

The suppression hearing was conducted over the course of two days on

May 18 and June 13, 2015. We briefly summarize the pertinent facts.

On March 18, 2013, State Police intercepted a text message from

Thomas to Derek Fuqua requesting a "dollar and a half." State Police

interpreted that to be a request to purchase heroin. Later that day, State Police

conducted a visual surveillance of Derek Fuqua's residence. They observed

Thomas and Wall arrive in a Dodge Caravan and meet with Fuqua. Fuqua

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48
removed a bag from the trunk of a Chevrolet Camaro. Thomas and Fuqua then

entered the Camaro. After a short time, Thomas exited the Camaro holding

something against his body, which the surveilling officers believed to be the

bag that Fuqua had removed from the trunk of the Camaro. Thomas entered

the Caravan and sat in the passenger seat. The Caravan then drove off. State

Police contacted the Jersey City Police Department (JCPD) and instructed

them to conduct a directed stop of the Dodge Caravan, informing them that the

vehicle's occupants were suspected of engaging in a CDS transaction and that

Thomas had active arrest warrants.

As instructed, JCPD officers stopped the Caravan, telling the occupants

the reason for the stop was failure to obey a traffic light. The driver of the

Caravan, Wall, was unable to produce a valid New Jersey vehicle registration.

The officers checked the automated traffic system and confirmed that Thomas

had several active traffic warrants. He was placed under arrest. As the

officers were removing Thomas from the vehicle, they observed a glassine bag

on the floor between the front and back seats. The glassine bag was labeled

"Jumping Jack" and based on their training and experience, the officers

believed it to contain heroin. The officers also noticed aftermarket

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49
modifications to the vehicle consistent with the installation of a trap door,

indicating a hidden compartment.

The officers requested the assistance of a narcotics detection canine. 19

The dog alerted to the presence of CDS in the vehicle. The minivan was then

transported to JCPD headquarters and police obtained a search warrant. The

ensuing search of the minivan recovered a clear bag containing approximately

200 grams of unpackaged heroin along with 100 individually wrapped bags of

suspected heroin in the hidden compartment.

Importantly for purposes of this appeal, the testimony elicited at the

suppression hearing concerning the dog's examination of the vehicle is sparse,

reflecting that the defense argument at the time of the suppression hearing did

not challenge the lawfulness of the canine sniff. JCPD Lieutenant Anthony

Musante testified on direct examination that the "canine indicated on the

passenger side of the vehicle the presence of narcotics."

On cross-examination, Wall's counsel queried the lieutenant as follows:

Defense So, a drug dog is brought down to the
Counsel: location, and the drug dog, basically,
goes around the vehicle, in the vehicle,

19
It is not clear from the limited record before us whether the officers
summoned the canine to make it appear the encounter was an unplanned traffic
stop during which the officers' suspicions arose spontaneously. See supra note
18.
A-3149-17
50
 and ultimately hits on an area on the
right interior portion of the vehicle,
correct?

Lieutenant Correct.
Musante:

Defense And it's at that point, based upon the hit
Counsel: being made, that what happens?

Lieutenant That we apply for a search warrant.
Musante:

Defense And the warrant then is based upon the
Counsel: motor vehicle stop, the plain view
observation, and this hit by the drug
dog when he's—goes to the interior
portion of the car, and supposedly
indicates that there's a potential[—]that
there's something concealed in the car?

Lieutenant That is correct.
Musante:

JCPD Officer Joseph Anzivino also testified at the suppression hearing.

His account of the canine inspection was even less detailed. He testified that

they requested a canine response unit and that "[t]he canine . . . was trained in

narcotics detection. He indicated that there was a positive indication of CDS

in the vehicle, at which point we secured the vehicle and took it back to [police

headquarters], and I prepared a search warrant."

The dog's handler did not testify.

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 The trial court did not rule immediately. On June 23, 2015—twenty

days after the conclusion of the suppression hearing—Wall filed a

supplemental letter-brief arguing for the first time that the evidence seized

from the hidden compartment must be suppressed based on Lieutenant

Musante's testimony that suggests the dog at some point entered the vehicle.

Wall argued the dog's warrantless entry of the minivan was an unconstitutional

search. Thomas did not file a supplemental motion brief and did not join

Wall's brief.

On October 22, 2015, the trial court rendered a written opinion denying

defendants' joint suppression motion. The trial court found the manner in

which police used the canine was unconstitutional. While recognizing that

police may use a drug detection dog to examine the outside of a vehicle

without a warrant or probable cause, the court reasoned—correctly, in our

view—the canine could not be used to inspect the interior of the vehicle

without first obtaining a search warrant or consent unless exigent

circumstances excused the failure to obtain a warrant. With respect to factual

findings, the court stated that it was "not persuaded that the canine's search

was limited only to the exterior of the defendants' vehicle." To support this

finding, the court relied on Lieutenant Musante's brief affirmative responses

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52
when he was asked on cross-examination whether the canine searched "in the

vehicle" and whether the dog went "to the interior portion of the car."

The trial court further concluded that there were no exigent

circumstances that excused the failure to obtain a warrant before allowing the

dog to inspect the interior of the vehicle. The court reasoned that Wall and

Thomas had already been arrested and the glassine bag observed in plain view

on the floor of the vehicle had already been confiscated. The court found there

were no other exigent circumstances to justify an immediate roadside search of

the vehicle.

Based on these findings, the court concluded the canine was improperly

used to perform a search of the interior of the vehicle and therefore the dog's

positive alert to CDS was a fruit of the unlawful entry. Noting the dog sniff

was used in conjunction with other evidence in support of the search warrant

application, the court nonetheless sustained the warrant, citing to State v.

Ortense, 171 N.J. Super. 453 (App. Div. 1980), for the proposition that "if the

supporting affidavit contains information both lawfully and unlawfully

obtained and the lawfully obtained information is adequate to establish

probable cause, the warrant will be deemed properly issued." The court

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53
determined that the other facts included in the warrant affidavit were sufficient

to establish probable cause to believe CDS was concealed in the vehicle.

Specifically, the court found independent probable cause based on the

officers' training in narcotics detection, their plain view observation of the

glassine bag containing suspected heroin, and their observation of aftermarket

modifications to the Caravan indicating the presence of a hidden "trap door"

compartment. The court concluded those circumstances provided a sufficient

independent basis upon which to sustain the validity of the search warrant.

The court thereupon denied the motion to suppress.

Thomas and the State take issue with different portions of the trial

court's opinion. Thomas argues the court did not address all of the elements of

the independent source doctrine spelled out by our Supreme Court in Holland.

The State does not dispute the trial court did not complete the three-prong

independent source analysis required by Holland but argues resort to that

exception to the exclusionary rule is unnecessary because the canine inspection

was lawful.

A.

We first address the State's contention that the trial court erred in finding

that the canine inspection of the Caravan was unlawful. In United States v.

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54
Place, the United State Supreme Court held that a canine sniff does not

constitute a "search" within the meaning of the Fourth Amendment. 462 U.S.

696, 706–07 (1983). The Court characterized canine sniffs as sui generis

because they do not reveal noncontraband items. Id. at 707.

Place involved the use of a drug detection canine to inspect the

defendant's luggage at an airport. In Indianapolis v. Edmond, the Court

applied the same rationale to the scent examination of a vehicle, reiterating

that a canine sniff "is not designed to disclose any information other than the

presence or absence of narcotics." 531 U.S. 32, 40 (2000). The Court also

recognized that the sniff "does not require entry into the car." Ibid. In other

words, a positive alert from a canine sniff made from outside a vehicle can

support the inference that CDS is contained within the vehicle. The dog thus

does not have to enter the vehicle to establish probable cause to believe that

CDS is concealed within. See Florida v. Harris, 568 U.S. 237, 246–47 (2013)

(holding that a drug detection canine's sniff of a vehicle's exterior and alert

provides probable cause to believe it contained illegal drugs, when the canine

either has been formally certified as reliable or has recently successfully

completed a training program testing its proficiency in locating drugs).

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55
 In Illinois v. Caballes, 543 U.S. 405 (2005), the Court provided further

guidance on the use of drug detection canines deployed to the scene of a motor

vehicle stop. The Court held "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." Id. at 408 (emphasis added).

The Court concluded that the canine sniff of the exterior of the vehicle did not

infringe upon the defendant's privacy interests. Id. at 408–10. The Court thus

made clear that the officers did not need reasonable suspicion, much less

probable cause, to believe the defendant was engaged in narcotics trafficking

before they could subject a vehicle to a canine sniff. Id. at 408.

The New Jersey Supreme Court has since embraced the United States

Supreme Court's rationale that canine sniffs do not constitute a search. In

State v. Dunbar, our Court

endorse[d] the federal determination that a canine
sniff is sui generis and does not transform an
otherwise lawful seizure into a search that triggers
constitutional protections.[] Place, . . . 462 U.S. at
706–07; Edmond, . . . 531 U.S. at 40. Canine sniffs
do not involve the unveiling of noncontraband items
that would otherwise remain unexposed to public view
and signal only the presence or absence of illegal
items. Place, . . . 462 U.S. at 707. Canine sniffs

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56
 therefore constitute a unique procedure that is less
intrusive than a search.

[229 N.J. 521, 539 (2017).]

The Dunbar Court also expressly adopted "the federal standard for

determining the manner in which an officer may conduct a canine sniff during

an otherwise lawful traffic stop." Ibid. Specifically, the Court held that an

officer in this State "does not need reasonable suspicion independent from the

justification for a traffic stop in order to conduct a canine sniff." Ibid. (citing

Caballes, 543 U.S. at 408).

We emphasize, however, that this legal principle applies only to a canine

sniff of the exterior of a vehicle. A canine sniff conducted while inside a

detained vehicle raises constitutional concern, not because the sniff can reveal

noncontraband belongings, but rather because any law enforcement incursion

into a protected space constitutes a privacy intrusion for purposes of the Fourth

Amendment and Article I, paragraph 7 of the New Jersey Constitution. See

Caballes, 543 U.S. at 408 (recognizing any official conduct, including a dog

sniff, would be problematic if it were to infringe upon a constitutionally

protected privacy interest); Edmond, 531 U.S. at 40 (noting a canine sniff

"does not require entry into the car.").

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57
 Accordingly, although a drug detection canine sniff is not deemed to b e

a traditional search because it can only reveal the presence of contraband,

Caballes, 543 U.S. at 409, the canine must be lawfully present at the moment

of its scent inspection. Cf. Horton v. California, 496 U.S. 128, 137 (1990)

(explaining that for the plain view/sense doctrine to apply, "not only must the

officer be lawfully located in a place from which the object can be plainly

seen, but he or she must also have a lawful right of access to the object

itself."). In sum, whether labeled a "search" or not, a dog's physical entry into

a lawfully detained vehicle for the purpose of conducting a sniff inspection

constitutes a privacy intrusion that triggers the probable cause and warrant

requirements.20

We next consider the legal standards governing when police may enter a

vehicle for investigative purposes without first obtaining a warrant. It is well -

20
We note that not all police entries into a vehicle to inspect for concealed
objects require probable cause and a warrant or warrant exception. The so -
called "vehicle frisk" doctrine allows police to enter the passenger cabin of a
vehicle to conduct a limited inspection for weapons based on reasonable
articulable suspicion rather than probable cause. See State v. Gamble, 218
N.J. 412 (2014). That doctrine does not apply here. The State did not argue
there was a basis for the officers to believe that weapons were present.
We add that entry by a drug-detection canine does not fall under the
rubric of the vehicle frisk doctrine because an alert would not signal the
presence of weapons. We offer no opinion on whether a police canine trained
to detect firearms, ammunition, or explosives might be used to facilitate a
vehicle frisk for weapons.
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58
established that warrantless searches and seizures are "presumptively invalid";

thus, "the State bears the burden of proving "by a preponderance of the

evidence that a warrantless search or seizure falls within one of the few well -

delineated exceptions to the warrant requirement." State v. Mann, 203 N.J.

328, 337–38 (2010) (quoting Elders, 192 N.J. at 246).

Applying that foundational principle to the present context, we believe

that absent consent, a warrantless drug detection canine sniff of the interior of

a vehicle—that is, an examination that entails the canine entering the vehicle—

must satisfy the elements of the automobile exception to the warrant

requirement. Otherwise, the warrantless police entry into the vehicle for

investigative purposes would be unlawful, rendering a positive canine alert

inadmissible as a fruit of the unlawful entry.

In State v. Pena-Flores, our Supreme Court held that the automobile

exception under the New Jersey Constitution required the State to prove

exigent circumstances that would make it impracticable to obtain a warrant.

198 N.J. 6, 11, 28 (2009). Six years after Pena-Flores was decided, the Court

reversed course in State v. Witt, 223 N.J. 409 (2015), displacing the Pena-

Flores exigency test. The rule announced in Witt authorizes an automobile

exception search if (1) police have probable cause to believe the vehicle

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59
contains contraband or evidence of an offense, and (2) the circumstances

giving rise to probable cause are unforeseeable and spontaneous. Id. at 447.

However, the Witt reformulation of the automobile exception applies only

prospectively, that is, to searches conducted after Witt was decided on

September 24, 2015. Id. at 449–50. In the case before us, the vehicle stop and

ensuing search occurred before Witt was decided. Accordingly, under the

Pena-Flores formulation that was then in force, police could not enter the

Caravan to advance their investigation absent exigent circumstances, which, as

the trial court correctly found, did not exist in this case.

The State urges us to follow a line of federal cases holding that a

canine's entry of a vehicle to examine its interior does not constitute a privacy

intrusion for purposes of constitutional analysis unless the dog was directed by

the police to enter the vehicle or unless officers encouraged or facilitat ed the

dog's entry. In United States v. Pierce, for example, the window of the

detained vehicle was open, creating an opportunity for the dog to breach the

interior. 622 F.3d 209, 212–14 (3d Cir. 2010). The canine jumped through the

open window and sniffed throughout the interior of the car. Id. at 211–12.

The Third Circuit Court of Appeals held that because the dog entered the car

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without prompting and was following its "natural migration from [its] initial

exterior sniffs," the canine entry was not unlawful. Id. at 213–15.

That analytical approach, which we refer to as the "instinctive-reaction"

principle, has been adopted by other federal appellate courts. See United

States v. Sharp, 689 F.3d 616, 619–620 (6th Cir. 2012) (holding "a trained

canine's sniff inside of a car after instinctively jumping into the car is not a

search that violates the Fourth Amendment as long as the police did not

encourage or facilitate the dog's jump"); United States v. Lyons, 486 F.3d 367,

373 (8th Cir. 2007) ("Absent police misconduct, the instinctive actions of a

trained canine do not violate the Fourth Amendment."); United States v. Stone,

866 F.2d 359, 364 (10th Cir. 1989) ("dog's instinctive actions did not violate

the Fourth Amendment"); United States v. Vasquez, 555 F.3d 923, 930 (10th

Cir. 2009) ("[W]e have upheld the legality of such a sniff during a lawful

detention when . . . (1) the dog's leap into the car was instinctual rather than

orchestrated[,] and (2) the officers did not ask the driver to open the point of

entry . . . used by the dog."); cf. United States v. Pulido-Ayala, 892 F.3d 315,

319–20 (8th Cir. 2018) (holding if a dog's access to a car's interior is

facilitated by the conduct of the driver or passenger leaving the door open,

officers have no obligation to then close the door and the ensuing entry is not

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unlawful); United States v. Winnington, 140 F.3d 1328, 1331 (10th Cir. 1998)

(holding canine sniff became a search in violation of Fourth Amendment when

"the officers themselves opened the door" and "facilitate[d] a dog sniff of the

van's interior") (emphasis added).

The record as it presently stands does not support the State's reliance on

these federal decisions because no information was elicited at the suppression

hearing concerning many of the circumstances deemed to be relevant in those

cases. For example, it is not clear from the present record whether: (1) the dog

first examined the Caravan's exterior and whether it alerted to the presence of

CDS before entering the vehicle; (2) the dog entered the vehicle via an open

window or door; (3) the door or window had been opened by an occupant, or

by police, and for what purpose; (4) the door or window was left open by an

occupant, or by an officer; (5) the dog jumped completely into the vehicle or

whether only its head/nose broke the plane of the vehicle interior in the course

of conducting an exterior sniff; 21 or (6) the dog's entry was on the command of

21
We surmise that a police handler would be able to exercise greater control
in preventing his or her canine partner from fully entering a vehicle than in
preventing the dog from briefly poking its nose partially into a vehicle through
an open door or window in the course of conducting an otherwise lawful
exterior examination. The latter circumstance might present a less intrusive—
if not minimally intrusive—physical incursion for purposes of determining the
objective reasonableness of the handler's conduct. Cf. State v. Mandel, 455
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or was facilitated by the handler, or instead was an instinctive reaction by the

animal.

Given the dearth of information elicited at the suppression hearing

regarding the circumstances of the canine sniff, we decline to issue what

essentially would be an advisory opinion based more on speculation than on

well-supported factual findings by the trial court. We thus offer no opinion on

whether, under the New Jersey Constitution, 22 a drug detection canine is

N.J. Super. 109, 115 (App. Div. 2018) ("[It is not clear] whether an officer
conducts a search by momentarily placing his head into an open car
window. In New Jersey, no reported case appears to address this
question. However, other courts that have ruled on the issue have generally
held this 'constitute[s] a "search" for Fourth Amendment purposes.'" (internal
citations omitted)). So too we might consider it relevant whether the handler
took steps to remedy an unauthorized instinctive entry by ordering the dog to
exit the vehicle immediately.
To ensure a proper record is created to address the State's novel legal
argument, we deem it appropriate for the trial court to make specific findings
concerning the degree to which the dog entered the vehicle, the length of time
it was inside, and the role the handler played not only in facilitating the
incursion, but also in minimizing/remediating an instinctive incursion .
22
As we have noted, in Dunbar, our Supreme Court "adopt[ed] the federal
standard for determining the manner in which an officer may conduct a canine
sniff during an otherwise lawful traffic stop." 229 N.J. at 539. We do not
interpret that statement to mean that the Court tacitly embraced all federal
precedents pertaining to canine sniffs, including the opinions of various Circuit
Courts of Appeals accepting the instinctive-reaction principle. Rather, we
believe the Court would carefully scrutinize that body of caselaw to determine
whether the instinctive-reaction principle is fully consonant with the interests
embodied in Article I, Paragraph 7 of our State Constitution. As the Court
noted in Witt, "[w]e have not hesitated to find that our State Constitution
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63
deemed to be a law enforcement instrumentality such that its physical intrusion

into a constitutionally protected space, whether instinctive or not, constitutes

police action attributable to its human partner, thus requiring a warrant or

warrant exception.

We emphasize that in this instance—as is often the case—the outcome of

the search-and-seizure contest requires analytical precision that in turn

depends on a record that nails down the precise nature, timing, and sequence

of all constitutionally significant events. The careful review of police actions

and decisions requires a painstaking step-by-step analysis that identifies

precisely (1) when a Fourth Amendment liberty or privacy intrusion occurs;

(2) the legal standard triggered by that intrusion (e.g., reasonable suspicion,

probable cause, the warrant requirement, etc.); and (3) whether the liberty or

privacy intrusion was justified at the moment it occurred, applying the

governing legal standard to the totality of the circumstances known to police at

that moment.

provides [New Jersey] citizens with greater rights . . . than those available
under the United States Constitution." 223 N.J. at 409 (citing Lewis v. Harris,
188 N.J. 415, 456 (2006)). Accord State v. Carter, __ N.J. __, __ (2021) (slip
op. at 40) ("On a number of occasions, this Court has found that the New
Jersey Constitution 'affords our citizens greater protection against
unreasonable searches and seizures' than the Fourth Amendment does."
(internal citations omitted)).
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 That leads us to the State's contentions regarding the sparse record

concerning the circumstances of the canine sniff. As we have noted, as a

general rule, the State bears the burden of justifying a warrantless search or

seizure. See Mann, 203 N.J. at 337–38; see also State v. Pineiro, 181 N.J. 13,

19 (2004) (recognizing a warrantless search or seizure is presumed invalid and

the State as the party seeking to validate a warrantless search has the burden of

proving its validity). The State nonetheless argues that it should not bear the

burden of establishing that the procedures used during the canine sniff were

constitutionally adequate because the issue was not raised before or during the

suppression hearing. The State cites Witt for the proposition that it should not

bear the burden of proving the lawfulness of the canine sniff because it was not

given notice of the need to elicit more fulsome testimony.

In Witt, the Court rejected the defendant's challenge to the lawfulness of

a stop because the defendant "did not challenge the validity of the motor-

vehicle stop . . . in either his brief or argument before the trial court." 2 23 N.J.

at 418. Rather, the challenge to the stop was raised for the first time on

appeal. Ibid. In rejecting the defendant's unlawful stop contention, the Court

rejected the suggestion that "the State [be required to] disprove issues not

raised by the defense at a suppression hearing," as such a holding "would

A-3149-17
65
compel the State to cover areas not in dispute from fear that an abbreviated

record will leave it vulnerable if the defense raises issues for the first time on

appeal," thus needlessly lengthening the suppression hearing process. Ibid.

Accordingly, because the State in Witt was "deprived of the opportunity to

establish a record that might have resolved the issue through a few questions,"

the Court held that the lawfulness of the stop in that case had not been

preserved for appellate review. Id. at 418–19.

We note that in this instance, in contrast to Witt, the newly-minted

defense legal theory was not raised for the first time on appeal. Co-defendant

Wall raised the canine sniff argument to the trial court, but only after the

suppression hearing had wrapped up. Because the trial court ruled on the

canine sniff issue, moreover, we are permitted—indeed, obliged—to review

the court's suppression ruling in its entirety. Certainly, Thomas is not

procedurally barred in these circumstances from asserting on appeal that the

trial court correctly ruled that the canine sniff was unlawful. Cf. Pressler &

Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2021) (noting that

appellate courts may consider arguments so long as the "issue was raised in the

trial court even if [the] argument before the trial court was based on a different

theory from that advanced in the appellate court"). Nor does this unusual

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66
procedural posture require us to apply the plain error standard of review to

defendant's contention. See R. 2:10-2 (permitting an appellate court to review

an issue not raised below applying the plain error standard). Here, the issue

was raised below—albeit belatedly—and was ruled upon by the trial court.

Though we do not agree that the State bears no burden in proving the

lawfulness of the canine sniff, we do concur with the State's argument that the

failure to raise the dog sniff issue until after the evidentiary hearing was

completed "deprived [the State] of the opportunity to establish a record that

might have resolved the issue through a few questions." Witt, 223 N.J. at 418–

19; see also State v. Robinson, 200 N.J. 1, 21 (2009) ("[T]he failure to raise

defendant's present claim during the motion to suppress denied the State the

opportunity to confront the claim head-on; it denied the trial court the

opportunity to evaluate the claim in an informed and deliberate manner; and it

denied any reviewing court the benefit of a robust record within which the

claim could be considered.")

As we have noted, our deference to a trial court's factual findings at a

motion to suppress presupposes those findings are supported by sufficient

credible evidence in the record. Evans, 235 N.J. at 133; Robinson, 200 N.J. at

15. Furthermore, we are not bound in any event by a trial court's

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interpretations of the legal consequences that flow from established facts. See

Manalapan, 140 N.J. at 378.

In this instance, we believe the abbreviated record is inadequate to

support the trial court's conclusion that the canine sniff was unlawful. By way

of example, the trial court in its written decision commented that it was "not

persuaded that the canine's search was limited to the exterior of the defendant's

vehicle." That is not a definitive finding that the canine did not first examine

the exterior of the vehicle and signal the presence of CDS before entering the

vehicle. Indeed, the court's phraseology could be read to imply that there had

been an exterior canine sniff that was followed by an interior sniff. Moreover,

Lieutenant Musante's affirmative response to counsel's question that the dog

"goes around the vehicle" and "ultimately hits" does not preclude a finding that

the dog first examined the exterior of the Caravan and alerted to the presence

of CDS before entering the vehicle. If the dog alerted while still out side the

vehicle, that alert would not be subject to the exclusionary rule and could be

considered in determining whether there was probable cause to believe there

was CDS in the vehicle, see Harris, 568 U.S. at 246–47, thus rendering any

subsequent alert made by the dog from inside the vehicle redundant for

purposes of the warrant application.

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 We decline to speculate on what actually happened during the directed

stop with respect to the deployment of the canine. Nor are we prepared to

exercise original jurisdiction to fill in the gaps in the record. See R. 2:10-5;

Tomaino, 364 N.J. Super. at 234–35 ("Our original factfinding authority must

be exercised 'with great frugality and in none but a clear case free of doubt.'")

(quoting In re Boardwalk Regency Corp. Casino License, 180 N.J. Super. 324,

334 (App. Div. 1981).

We therefore remand for the trial court to convene a new suppression

hearing to supplement the abbreviated record unless the parties agree to

stipulate to the relevant facts concerning the canine scent examination. We

instruct the trial court to make specific factual findings about the dog's

movements and behaviors both inside and outside the vehicle, and to address

whether the canine's positive alert was the fruit of an unlawful incursion. We

further instruct the trial court to make findings concerning the circumstances

that were deemed to be relevant in the federal dog sniff cases cited by the State

(e.g., whether the dog's entry was directed or in any way facilitated by its

handler or other officers, or was instead purely instinctive.) See also infra note

24. Although we do not retain jurisdiction, we instruct the trial court to make

its findings of fact and conclusions of law with respect to the use of the drug

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detection canine in sufficient detail to facilitate appellate review, should that

be required.

B.

We turn next to Thomas's contention that the trial court did not consider

and make findings concerning each prong of the independent source doctrine

as required under State v. Holland, 176 N.J. 344 (2001). In Holland, the Court

recognized an exception to the general rule long established in Wong Sun 23

that evidence found after a constitutional violation must be suppressed. 176

N.J. at 360–61. To invoke the independent source exception to the

exclusionary rule,

[f]irst, the State must demonstrate that probable cause
existed to conduct the challenged search without the
unlawfully obtained information. It must make that
showing by relying on factors wholly independent
from the knowledge, evidence, or other information
acquired as a result of the prior illegal search.
Second, the State must demonstrate in accordance
with an elevated standard of proof, namely, by clear
and convincing evidence, that the police would have
sought a warrant without the tainted knowledge or
evidence that they previously had acquired or viewed.
Third, regardless of the strength of their proofs under
the first and second prongs, prosecutors must
demonstrate by the same enhanced standard that the

23
Wong Sun v. United States, 371 U.S. 471, 484–88 (1963) (holding the
exclusionary rule extends to the direct and indirect products of unlawful police
conduct, establishing the "fruit of the poisonous tree" doctrine).
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 initial impermissible search was not the product of
flagrant police misconduct.

[Ibid.]

In this instance, the trial court determined that after excluding the

canine's positive alert to CDS, the other information set forth in the warrant

application was sufficient to establish probable cause. We agree and affirm

that finding, which satisfies the first element of the Holland independent

source test. 24 The State acknowledges, however, the trial court did not

consider or make findings as to the two remaining elements of the three -part

test. In these circumstances, we are constrained to remand for the trial court to

complete the analytical process.

With respect to the second prong—whether the State would have sought

a warrant without the tainted evidence—we note the circumstances might

permit us to infer that the police would have applied for a warrant regardless

of the result of the canine scent examination. Holland, 176 N.J. at 361. This

was, after all, a directed stop following observation of an apparent drug

24
We note that on remand pursuant to subsection III(A) of this opinion, if the
trial court finds the dog alerted to the presence of CDS while still outside the
vehicle, that finding would bolster the conclusion that police had probable
cause to support the warrant independent of any positive canine alert made
after an unlawful entry into the vehicle.
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transaction involving a person who was a target of an active wiretap

investigation. See supra note 19.

The trial court aptly commented in its decision that "[i]mpoundment of

the vehicle seemed inevitable." That comment does not, however, constitute a

finding—applying the clear-and-convincing-evidence standard required in

Holland—that JCPD officers would have applied for a search warrant even if

the dog had not alerted to the presence of CDS. We again decline to exercise

original jurisdiction and leave for the trial court on remand to make findings

and conclusions regarding the second prong of the Holland independent source

test.

With respect to the third prong, the judge made no finding as to whether

the canine's positive alert was "the product of flagrant police misconduct." Id.

at 361. We note that although the State bears the burden of proving the

elements of the independent source doctrine by clear and convincing evidence,

"[f]lagrancy is a high bar, requiring active disregard of proper procedure, or

overt attempts to undermine constitutional protections." State v. Camey, 239

N.J. 282, 310 (2019) (citing State v. Smith, 212 N.J. 365, 398 (2012)). We

leave for the trial court to decide in the first instance whether the use of the

canine constitutes flagrant police misconduct.

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 We note the State argues on appeal that using the canine to inspect the

interior of the vehicle cannot constitute a flagrant violation of defendant's

constitutional rights because the Pena-Flores exigency test was replaced in

Witt. We disagree with that argument for two distinct reasons.

First, it is by no means certain—indeed, doubtful—that police in this

case would have been allowed to enter the vehicle to conduct a canine scent

examination pursuant to Witt. The Court made clear in Witt that "if the

circumstances giving rise to probable cause were foreseeable and not

spontaneous, the warrant requirement applies." 223 N.J. at 448. In this

instance, the encounter was a directed stop made at the request of the State

Police based on an intercepted telephone conversation concerning CDS and the

State Police observation of a suspected drug transaction just before Thomas

entered the Caravan with the suspected contraband.

More fundamentally, we believe that under the independent source

exception, flagrancy is measured by examining the manner in which police

violated the law as it existed at the time of the police-citizen encounter. The

Holland flagrancy prong does not invite reviewing courts to discount or

minimize constitutional violations based on subsequent substantive revisions

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to the constitutional standards governing police conduct. 25 Any such argument

ignores the fact that in Witt, the Court carefully considered and expressly

eschewed the option to apply the less-restrictive spontaneity test retroactively.

By leaving the Pena-Flores exigency test intact as to automobile searches

conducted before Witt was decided, the Court clearly held that pre-Witt non-

exigent automobile searches violated those defendants' constitutional rights,

triggering the exclusionary rule. Id. at 449. Those constitutional violations

are no less serious than violations that occur after Witt and require the same

remedy. The point simply is that police must follow search and seizure rules

as they exist, not as they might become. Just as an unreasonable intrusion is

not validated or excused by what it fortuitously turns up, see Bruzzese, 94 N.J.

at 221, police disregard of the search and seizure rules then in force is not

made less flagrant by mere fortuity of subsequent changes to the law. Rather,

as we have already noted, flagrancy under the independent source doctrine is

measured at the moment the police misconduct occurs.

25
We note this commonsense principle cuts both ways. If police were to
violate a new search and seizure rule that was given retroactive effect, the
flagrancy of the misconduct for purposes of independent source analysis would
be measured as of the moment the search or seizure was conducted. Since
police could not be expected to anticipate a new more restrictive rule, their
violation of the new rule would not constitute flagrant misconduct provided
they were complying with the law as it was then understood.
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 We leave to the trial court's discretion whether on remand to permit or

require additional testimony, convene oral argument, or require the parties to

submit additional materials with respect to the independent source exception.

We add that to facilitate appellate review, should that be needed, the trial court

shall make findings concerning the Holland independent source test even if it

determines on remand pursuant to subsection III(A) of this opinion that the use

of the canine was not unlawful.

IV.

We next address Virgil's contention the trial court abused its discretion

in denying her motion to withdraw her guilty plea to conspiracy. The

gravamen of her argument on appeal is that she did not expect to be ordered to

perform fifty hours of community service as a condition of probation, even

though the record shows she completed her community service before filing

the motion to withdraw her guilty plea. Because we affirm the denial of her

motion substantially for the reasons explained in the trial court's thorough and

cogent oral opinion, we need not re-address defendant's arguments at length.

We add the following comments.

The scope of our review is limited. We review a trial court's decision

on a motion to withdraw a guilty plea for an abuse of discretion. See State v.

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O'Donnell, 435 N.J. Super. 351, 372 (App. Div. 2014). The "'denial of

defendant's request to withdraw his [or her] guilty plea will be reversed on

appeal only if . . . the [trial] court's decision [was] clearly erroneous.'" State v.

Lipa, 219 N.J. 323, 332 (2014) (quoting State v. Simon, 161 N.J. 416, 444

(1999)).

In all plea withdrawal cases, whether evaluated under the "interests of

justice" standard of Rule 3:9-3(e) for pre-sentencing motions, or the "manifest

injustice" standard of Rule 3:21-1 for post-sentencing motions, "the burden

rests on the defendant, in the first instance, to present some plausible basis for

his [or her] request, and his [or her] good faith in asserting a defense on the

merits." State v. Slater, 198 N.J. 145, 156 (2009) (quoting State v. Smullen,

118 N.J. 408, 416 (1990)).

The Court in Slater set forth a four-part test to evaluate a defendant's

motion to withdraw a guilty plea:

trial judges are to consider and balance four factors in
evaluating motions to withdraw a guilty plea: (1)
whether the defendant has asserted a colorable claim
of innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the existence
of a plea bargain; and (4) whether withdrawal
would result in unfair prejudice to the State or unfair
advantage to the accused.

[Id. at 157–58 (citation omitted).]

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 The Court added, "[a]nother important consideration is whether trial has

begun. Once a jury has been chosen and sworn, and a plea interrupts the trial,

withdrawal should only be permitted in the rarest of circumstances." Id. at

161.

The trial court in the matter before us carefully addressed the four

enumerated factors, and also considered that defendant's guilty plea interrupted

what would otherwise have been a lengthy racketeering trial. 26 We affirm the

trial court's thorough and detailed findings with respect to each of the four

Slater factors, which we need not recount in this opinion.

We add that Virgil's central argument is that the trial court violated her

reasonable expectations by imposing fifty hours of community service as a

condition of the three-year term of probation. We acknowledge that the

negotiated plea agreement did not expressly mention the possibility of

imposing community service as a condition of probation. Nor was the

prospect of community service expressly mentioned during the plea colloquy.

In State v. Saperstein, we held that when "[d]efendant accepted the possibility

26
We note the State's plea offer was contingent on the other trial co -
defendants, Thomas and Styles, also pleading guilty. In these circumstances,
the resource-conservation goal of the contingent plea arrangement would be
eviscerated if defendant were allowed to withdraw her guilty plea and the case
were to be remanded for her to stand trial alone. See Slater, 198 N.J. at 161.
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of a five[-]year custodial term[,] . . . imposition of 1,000 hours of community

service cannot be said to have exceeded defendant's reasonable expectations."

202 N.J. Super. 478, 482 (App. Div. 1985). We further explained,

We do not suggest that every obligation to be imposed
as a condition of probation must be forecast and
explained at the entry of the plea; many such
obligations can fairly be said to be reasonably
contemplated conditions of any probationary sentence.
The [imposition of 1,000 hours of] community service
discussed above is one example.

[Id. at 483.]

So too in this case, we do not hesitate to conclude that the imposition of

fifty hours of community service as a condition of a three-year period of

probation did not violate Virgil's reasonable expectations and affords no basis

upon which to allow her to withdraw her voluntary guilty plea.

V.

Finally, we address Virgil's contention the trial court erred in denying

her motion for a mistrial based on remarks made by the deputy attorney

general in his opening argument to the jury. Specifically, while explaining to

the jury why cutting or diluting agents are added to heroin, the deputy attorney

general remarked, "[h]eroin ingested in its raw form is lethal. It can kill in just

one dose." As we have already noted, the trial court found that comment was

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inappropriate but declined to declare a mistrial. The court instead issued a

curative instruction, making clear that there was no allegation in this case that

anyone had been harmed and that the State's allegations were limited only to

racketeering, conspiracy, and distribution of heroin. See State v. Smith, 224

N.J. 36, 47 (2016) (holding that whether an event at trial justifies a mistrial is a

decision 'entrusted to the sound discretion of the trial court.'") (quoting State v.

Harvey, 151 N.J. 117, 205 (1997)).

Virgil's contention on appeal lacks sufficient merit to warrant discussion

in this opinion. R. 2:11-3(e)(2). By pleading guilty, she waived all trial

issues. See State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1998)

("Generally, a guilty plea constitutes a waiver of all issues which were or

could have been addressed by the trial judge before the guilty plea."). Indeed,

Virgil acknowledges she did not preserve the mistrial issue for appellate

review when she pled guilty. In contrast, at the plea hearing, she expressly

reserved the right to challenge the trial court's wiretap ruling on appeal. We

doubt the trial court and the State would have allowed a conditional plea

preserving the right to appeal from the denial of the mistrial motion. See R.

3:9-3(f) (authorizing a conditional plea preserving the right to appeal non-

search-and-seizure issues only with the approval of the court and the consent

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of the prosecutor). We are satisfied, moreover, that our enforcement of the

general rule precluding appellate review of unpreserved issues does not

constitute an injustice in this case. Cf. State v. Gonzalez, 254 N.J. Super. 300,

304 (App. Div. 1992) (holding it would be unfair to require a defendant give

up a plea agreement in order to challenge the constitutionality of N.J.S.A.

2C:35-12).

VI.

To the extent we have not addressed them, any remaining arguments

raised by defendants lack sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(2). As to all four defendants, we remand with respect to the

wiretap issues in accordance with the specific instructions set forth in

subsection II(C) of this opinion. If the trial court determines that the Wiretap

Act was violated, it shall enter an order granting defendants' suppression

motion with respect to all intercepted communications and evidence deri ved

from those interceptions, vacate the judgments of conviction, reinstate all

counts of the indictment that were dismissed pursuant to the plea agreements,

and conduct further proceedings consistent with that determination.

As to Thomas, we also remand for the court to supplement the record

and make additional findings of fact and conclusions of law with respect to the

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canine sniff issue as instructed in subsections III(A) and (B) of this opinion.

If the court determines that the search warrant for the Caravan was the fruit of

an unlawful canine sniff and cannot be sustained under the independent source

exception to the exclusionary rule, the court shall enter an order granting

Thomas's motion to suppress physical evidence, vacate his guilty plea, and

conduct further proceedings consistent with that determination.

We do not retain jurisdiction with respect to any of the remands ordered

in this opinion. In all other respects, we affirm the Law Division orders.

Affirmed in part; vacated and remanded in part.

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