Opinion
DOCKET NO. A-3510-11T4
05-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN J. CADAVID, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-08-1452. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7. We affirm.
I.
We discern the following facts from the evidence adduced at the suppression hearing. Detectives Daniel Melnick and Joseph Alves (collectively "the detectives"), observed defendant and another individual (the "co-defendant") standing in a remote area of a shopping center parking lot next to a black Lexus with New York State license plates (the "vehicle"). The detectives watched defendant and co-defendant place a large cardboard box into the vehicle's trunk. Defendant and co-defendant entered the vehicle and Detective Melnick testified that he observed "some kind of exchange[.]" Defendant drove the vehicle up to one of the stores, co-defendant exited the vehicle, and defendant drove away. Co-defendant did not enter the store, but turned around and walked back towards the area where the vehicle was parked.
The detectives followed co-defendant in their unmarked police car. As they got closer to co-defendant, Detective Melnick testified that he identified a plastic bag containing marijuana sticking out of co-defendant's back pocket. Co-defendant spotted the detectives, appeared startled, and reached back to pull his shirt down over his pockets.
The detectives then exited their vehicle, identified themselves as police officers, and co-defendant voluntarily stated that he had just met a friend from New York and that the plastic bag contained food. The detectives retrieved the plastic bag from co-defendant, confirmed it was marijuana, placed co-defendant under arrest, and read him his Miranda rights. The detectives searched co-defendant and recovered $1362 in cash.
Miranda v. Arizona, 384 U.S. 436, 467-48, 86 S. Ct. 1602, 1624-25, 16 L. Ed. 2d 694, 720 (1966).
According to Detective Melnick, co-defendant
was extremely jittery, nervous and . . . basically rambling saying, look I can give you -- many big drug dealers . . . but you have to let me go right now. . . . I can give you names, let me go right now. If you take me back to headquarters . . . it's done[,] there's no deal.Detective Melnick broadcasted an alert to stop the vehicle for possible involvement in a narcotics transaction.
Several minutes later, police stopped the vehicle on the entrance way to the New Jersey Turnpike. Defendant invoked his right to remain silent and refused to consent to a search of the vehicle. The police placed defendant in the back of a police vehicle without handcuffs.
A mobile video recorder (MVR) recorded the stop and we reviewed the video.
The detectives called for a canine unit, arrived at the scene, and spoke to defendant. The canine indicated the presence of drugs in the trunk and passenger side door. The police impounded the vehicle, obtained a search warrant, and found a cardboard box with large heat sealed bags of marijuana, along with a bag containing baggies of marijuana, in the vehicle's trunk. The bags of marijuana in the trunk were similar to that of the bag found on co-defendant.
A Middlesex County grand jury indicted defendant on third-degree possession of CDS, N.J.S.A. 2C:35-10a(3) (Count One); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (Count Two); and third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (Count Three).
At the suppression hearing, Detective Alves and co-defendant testified to a similar series of events as those described by Detective Melnick. The motion judge found that the testimony from the detectives was credible and that co-defendant confirmed the detectives' testimonies. The judge denied the motion to suppress, and defendant subsequently pled guilty to Count Three. The judge sentenced defendant to five years in prison with three years of parole ineligibility, concurrent to an unrelated out-of-state term of imprisonment.
The judge stated at the suppression hearing that a written opinion was forthcoming, but there was no record of the judge issuing an opinion. We granted defendant's motion for a limited remand to the judge to issue his findings of fact and conclusions of law on defendant's suppression motion.
Defendant raises the following points on appeal:
POINT I
THE CONFINEMENT OF DEFENDANT IN THE BACK OF A POLICE CAR FOR ONE-AND-A-HALF HOURS WHILE THE POLICE AWAITED THE ARRIVAL OF A CANINE WAS OBJECTIVELY UNREASONABLE, INVALIDATES THE SUBSEQUENT SEARCH, AND DEMANDS SUPPRESSION OF THE MARIJUANA FOUND IN DEFENDANT'S TRUNK.
POINT II
THE DRUG-SNIFFING DOG'S ENTRY INTO THE PASSENGER COMPARTMENT OF DEFENDANT'S CAR BASED ON THE HANDLER'S COMMAND WAS A "SEARCH" WITHOUT PROBABLE CAUSE.
II.
We reject defendant's primary argument that the delay in the arrival of the canine unit made the search of the vehicle objectively unreasonable.
In reviewing a motion to suppress, we will "uphold the factual findings underlying the trial court's decision so long as those findings are supported by substantial credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We owe this deference because "those findings are substantially influenced by [an] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 424-25 (alteration in original) (citation and internal quotation marks omitted). We will only reverse if the decision was "so clearly mistaken that the interests of justice demand intervention and correction." Id. at 425 (citation and internal quotation marks omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
It is well-established that "[b]oth the United States and the New Jersey Constitutions protect citizens against unreasonable searches and seizures[,]" and that an investigatory stop by the police "implicates our constitutional protections." State v. Mann, 203 N.J. 328, 337 (2010) (citation and internal quotation marks omitted). Warrantless searches and seizures are "presumptively invalid" and 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." Id. at 337-38 (citations and internal quotation marks omitted).
One exception to the warrant requirement is a Terry stop, which can occur when "'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Our Supreme Court has explained that a Terry stop is valid when
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.
[Id. at 127 (alterations in original) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]
Courts employ a two-part test designed to measure "the reasonableness of an investigative stop against the intrusion on the detainee's right to be secure from unreasonable searches." State v. Dickey, 152 N.J. 468, 476 (1998). This test considers "'whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'" Ibid. (quoting Terry, supra, 392 U.S. at 20, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905). Courts employ this standard to "measure the reasonableness of a detention following a valid traffic stop." Ibid.
There is no "hard-and-fast time limit for a permissible Terry stop." United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605, 615 (1985). Rather, "common sense and ordinary human experience must govern over rigid criteria." Id. at 685, 105 S. Ct. at 1575, 84 L. Ed. 2d at 615. Our Supreme Court, however, has recognized several factors to aid in the analysis of whether an investigatory stop becomes an "illegal arrest." Dickey, supra, 152 N.J. at 478-79. These include the length of time of the stop; "the degree of fear and humiliation that the police conduct engenders[;]" whether the defendant was placed in isolation, or transported to another location; or if defendant incurred unnecessary delays, handcuffing, or "confin[ment] . . . in a police car." Ibid. (citations and internal quotation marks omitted).
Here, the judge applied the proper legal standards and found that the police had reasonable suspicion to conduct the Terry stop, and that the stop did not amount to a de facto arrest. The judge found that
[t]here [were] sufficient facts that led [the detectives] to conclude that [defendant] was involved in a drug transaction with [co-defendant]. The [detectives] witnessed both of them haul a cardboard box into [defendant's] trunk, then enter the front of the vehicle and make some kind of exchange. Then [the detectives] witness[ed] [co-defendant] leave the vehicle and follow[ed] closely behind him,
eventually finding that he had marijuana in a plastic bag in his pants pocket. And that he also had [$1400] on his person.
There was reasonable suspicion to believe [that defendant] or his vehicle were involved in a drug transaction, and thus, the police lawfully stopped [defendant's] motor vehicle . . . .
The judge then determined that the length of the stop
did not elevate to a de facto arrest. [T]he stop did take almost [ninety-one] minutes from the time he was stopped to the time the K-9 completed their search. The standard in Dickey is unreasonable length of detention. And here . . . that length was reasonable, as it was also necessary to obtain the K-9 unit, because it was supported by reasonable suspicion that [defendant] was involved in some sort of illegal activity.
We see no reason to disturb the judge's findings and conclusions of law. There is substantial, credible evidence in the record which demonstrates that the detectives observed defendant and co-defendant engaged in an "exchange" in a remote part of the mall parking lot. The detectives observed co-defendant in possession of marijuana, and the later search determined co-defendant possessed a large sum of cash. This gave the police reasonable suspicion to stop defendant's vehicle.
Moreover, the MVR of the vehicle stop showed that defendant was stopped at approximately 3:34 p.m., placed in the officer's car at 3:38 p.m., and the canine sniff began at 5:01 p.m. During that time, the video demonstrated that defendant was not handcuffed in the back of the police vehicle, police conducted a plain view search which detected the odor of marijuana, and that the police dog "indicated" on the trunk and other parts of the vehicle.
Defendant's reliance on Dickey is misplaced. The defendants in Dickey, supra, 152 N.J. at 473, were detained for three hours, handcuffed, brought to the police barracks, and had their car impounded. Here, defendant was not handcuffed, not transported to a police station, and his car was not impounded until after the canine sniff. Most importantly, defendant waited less than ninety minutes for the entire process and was also informed by the detectives as to the status of the canine unit during the stop.
III.
We also reject defendant's remaining argument that because the canine's head entered the passenger compartment of the vehicle, the canine sniff was improperly executed.
Defendant did not raise this specific argument before the motion judge but argued at the suppression hearing that the search should be declared unlawful because a police officer placed his head in the passenger compartment. Therefore, despite the State's contention that we should not consider the issue pursuant to State v. Robinson, 200 N.J. 1, 18-22 (2009), we conclude that there is no procedural bar here because the "general tenor of the . . . argument remains the same." State v. Gruber, 362 N.J. Super. 519, 530 (App. Div.), certif. denied, 178 N.J. 251 (2003); see also Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2015) (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").
We review defendant's argument under the plain error standard since it was not fully raised below. R. 2:10-2. A plain error is one "'clearly capable of producing an unjust result.'" State v. Walker, 203 N.J. 73, 89 (2010) (quoting R. 2:10-2). In doing so, we "'may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" State v. Gibson, 318 N.J. Super. 1, 9 (App Div. 1999) (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971)).
It is well-established that the use of a drug-sniffing dog is not a search pursuant to the Fourth Amendment because "'[a] "canine sniff" by a well-trained narcotics detection dog . . . does not . . . expose non[-]contraband items that otherwise would remain hidden from public view[.]'" State v. Cancel, 256 N.J. Super. 430, 436 (App. Div. 1992) (quoting United States v. Place, 462 U.S. 696, 706-07, 103 S. Ct. 2637, 2644, 77 L .Ed. 2d 110, 120-21 (1983)), certif. denied, 134 N.J. 484 (1993).
While New Jersey courts have not directly addressed this issue, federal courts have held that "a trained narcotics dog's instinctive action of jumping into the car does not violate the Fourth Amendment." United States v. Pierce, 622 F.3d 209, 213-14 (3d Cir. 2010) (citing United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989)). However, this rule is limited to those instances where "the police did not encourage or facilitate the dog's jump." United States v. Sharp, 689 F.3d 616, 620 (6th Cir.), cert. denied, ___ U.S. ___, 133 S. Ct. 777, 184 L. Ed. 2d 514 (2012); accord Pierce, supra, 622 F.3d at 214 (indicating that instinctive "implies the dog enters the car without assistance, facilitation, or other intentional action by its handler").
Although we are not bound by lower federal court decisions, such decisions are given "due respect" in an attempt to create "judicial comity" and to avoid forum shopping. Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 79-80 (1990).
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Here, we see no error, let alone plain error, which would warrant invalidation of the canine search. The judge reviewed the MVR and found that there was nothing "illegal [in] using the drug sniffing dog," and that the canine sniff "was lawful." The judge noted that the canine performed "an exterior search of the vehicle" and the canine "alerted to the presence of narcotics in the trunk area of the [vehicle]."
The record supports the judge's findings that the canine indicated the presence of drugs in the trunk and that the search was lawful. Although it appears in the video that the canine stuck his head through the window that defendant opened, the handler did not allow the canine to fully enter the vehicle. Moreover, the canine indicated the presence of drugs prior to, and after, the alleged intrusion of the vehicle. This demonstrates that the dog "would have ultimately indicated on the [vehicle] even if [it] had not stuck [its] head inside the window." United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007); accord Pierce, supra, 622 F.3d at 214 (noting that a search is lawful when the "'window of the vehicle was open, creating an opportunity for the dog to breach the interior of the vehicle'" (quoting United States v. Williams, 690 F. Supp. 2d 829, 844 (D. Minn. 2010))).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION