Consent to search produce of unlawful detention
STATE v
ANGEL L. RIVERA,
Defendant-Appellant.
_________________________
Submitted May 1, 2019 – Decided May 22, 2019
Before Judges Nugent and Reisner.
On appeal from Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 16-06-
0556.
NOT FOR PUBLICATION WITHOUT THE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-4836-17T1
PER CURIAM
Following the denial of his suppression motion, defendant Angel L.
Rivera pled guilty to second-degree possession of a controlled dangerous
substance (CDS), N.J.S.A. 2C:35-5(b)(2), and second-degree unlawful
possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1), and was
sentenced to five years in prison, with a three-and-one-half year parole bar. As
permitted by the terms of the plea agreement, defendant appeals from his
conviction, focusing on the denial of the suppression motion.
On this appeal, defendant presents the following points of argument for
our consideration:
I. INFORMATION IN THE SEARCH WARRANT
SHOULD NOT HAVE BEEN CONSIDERED IN
DETERMINING WHETHER THE DETENTION AND
SEIZURE WITHOUT A WARRANT WERE VALID
II. THE PROLONGED DETENTION OF
DEFENDANT'S CAR WAS NOT JUSTIFIED BY
THE TESTIMONIAL EVIDENCE PRESENTED BY
THE STATE AT THE SUPPRESSION HEARING
III. THE INFORMATION DID NOT PROVIDE
REASONABLE SUSPICION JUSTIFYING THE
CONTINUED DETENTION OF DEFENDANT
WHILE A DOG SNIF[F] WAS CONDUCTED
IV. DEFENDANT'S CONSENT TO SEARCH WAS
NOT VOLUNTARY
V. EVEN IF THE CONSENT IS DEEMED VALID,
LAW ENFORCEMENT EXCEEDED THE SCOPE OF
A-4836-17T1
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THE CONSENT BY INVADING THE
STRUCTURAL INTEGRITY OF THE MOTOR
VEHICLE
In reviewing the denial of a suppression motion, we defer to the trial
court's factual findings if they are supported by sufficient evidence. State v.
Hubbard, 222 N.J. 249, 262 (2015). However, we engage in de novo review of
the trial court's legal interpretations. Id. at 263. After reviewing the motion
record, we conclude that the police did not have the reasonable and articulable
suspicion needed to prolong defendant's roadside detention for the purpose of
having a trained police dog sniff his vehicle for drugs. We also conclude that
defendant's written consent to the search of his car was the product of the
unconstitutional prolonged detention. The search warrant, pursuant to which the
police performed an additional search of defendant's car and eventually found
contraband, was likewise the fruit of the unlawful detention. Accordingly, we
reverse the order denying the suppression motion.
I
The following facts are derived from the motion record. On March 16,
2016, at about 10:15 p.m., Vineland Police Officer James Day observed a 2005
Toyota Avalon with its driver's side rear brake light not operating. Defendant
was driving the car, which was registered to his girlfriend. Officer Day pulled
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the car over due to the traffic violation. When Day approached the car to speak
with the driver, he recognized defendant.1 Officer Day told defendant why he
pulled him over, and defendant acknowledged the brake light was out.
Defendant provided Officer Day his license, registration, and proof of insurance.
The officer observed the interior of the vehicle using his flashlight but did not
see anything suspicious. Officer Day did not smell an odor of CDS, and
defendant was cooperative through the conversation. At that point, two
additional officers arrived on the scene as backup.
Officer Day performed a driver's license check and a warrant check.
Defendant's license was valid, and there were no warrants out for his arrest. At
some unspecified point during the stop, Sergeant Shaw arrived with his canine
unit, and Officers Selby and Maslanich also arrived.
Officers Selby and Maslanich told Officer Day that confidential
informants had told them that defendant was "currently selling large quantities
of heroin and cocaine" in Vineland. At the suppression hearing, Office Day was
unable to recall anything more specific concerning his conversation with those
two officers. Neither officer was called to testify at the suppression hearing.
However, during Day's testimony, the prosecutor asked him about a warrant
1
There was no testimony explaining how Day knew defendant.
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affidavit he had signed the day after the stop, and the affidavit was introduced
in evidence.
After receiving the information from Selby and Maslanich, Officer Day
asked defendant for his consent to search the car. Defendant responded, "what
does that have to do with my brake light being out?" and refused to consent.
After defendant declined consent to a search, Sergeant Shaw performed a canine
"sniff" test around defendant's vehicle, searching for evidence of narcotics.
Sergeant Shaw told Day that the dog "hit," indicating a positive reaction to
narcotics, near the front driver's side headlight.
Based on the positive dog sniff, the officers searched defendant,
recovering $1,138 in cash. They then again asked defendant for his consent to
search the car, indicating if nothing was found he would be permitted to leave.
Defendant then signed a consent to search form. During the search, Officer
Maslanich found an inconsistency in the back panel of the front passenger seat.
The officer pulled the panel away from the seat to look into the interior of the
seat and saw pieces of rice. According to Officer Day, rice can be used to keep
heroin dry. The officers stopped the search, seized the car, and applied for a
search warrant, supported by Day's affidavit. During a search the following day,
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the police found a handgun, ammunition, and heroin in a hidden compartment
in the front passenger seat.
II
We begin our legal analysis by addressing defendant's challenges to the
dog sniff and the warrant affidavit. In Rodriguez v. United States, 135 S. Ct.
1609 (2015), the Supreme Court drew a clear line of demarcation between a dog
sniff that prolongs an otherwise-routine traffic stop and one that does not
prolong the stop. If a police officer detains a suspect for a longer time than is
reasonably required to complete the traffic-related inquiry, the delay requires a
separate justification apart from the alleged traffic infraction.
"An officer . . . may conduct certain unrelated checks during an otherwise
lawful traffic stop. But . . . he may not do so in a way that prolongs the stop,
absent the reasonable suspicion ordinarily demanded to justify detaining an
individual." Id. at 1615. "The critical question . . . is not whether the dog sniff
occurs before or after the officer issues a ticket, . . . but whether conducting the
sniff 'prolongs'—i.e., adds time to—'the stop.'" Id. at 1616 (citation omitted).
See State v. Dunbar, 229 N.J. 521, 524 (2017) (adopting the federal standard
"barring unnecessary delays for the purpose of canine sniffs"). Thus, if the
process of getting the dog to the scene and conducting the sniff prolongs the
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stop, the court's inquiry must turn to whether the officer had reasonable
suspicion to detain the driver based on facts other than the traffic infraction.
State v. Nelson, __ N.J. __, __ (2019) (slip op. at 14); Dunbar, 229 N.J. at 525.
In this case, the State does not deny that the stop was prolonged but argues
that Officer Day had reasonable suspicion that defendant was engaged in selling
drugs, based on information Day received from Officers Selby and Maslanich.
As set forth in the search warrant affidavit Day prepared later on, those officers'
knowledge was derived from two confidential informants (CIs). Based on our
review of the suppression hearing, we find no abuse of discretion in the trial
judge admitting Days' affidavit in evidence. After a colloquy with the trial
judge, defense counsel waived his objection to the introduction of the warrant
affidavit. And, as significantly, defense counsel had the opportunity to cross-
examine Day about the affidavit. Hence, defendant's reliance on State v.
Atwood, 232 N.J. 433, 446-48 (2018), is misplaced here. However, that does
not end our inquiry.
There was no testimony about how long the stop lasted or whether Officer
Day was otherwise finished with the traffic-related portions of the stop before
the two back-up officers and Shaw arrived. However, in a colloquy with the
trial judge, the prosecutor admitted that the search was extended, and she argued
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that "what forms the basis of [the extension] is the extra informatio n [Day
obtained] from Officer Selby and Officer Maslanich." The prosecutor also relied
on the search warrant affidavit, describing the information Selby and Maslanich
had obtained from the CIs.
Day certainly had the right to rely on information provided by fellow
officers. State v. Crawley, 187 N.J. 440, 457 (2006). However, in challenging
the reasonable basis for the investigative detention, defendant was entitled to
challenge the source of those fellow officers' knowledge. Id. at 457-58. See
State v. Handy, 206 N.J. 39, 47-48 (2011). As the Court stated in Crawley:
It is understood “that effective law enforcement
cannot be conducted unless police officers can act on
directions and information transmitted by one officer to
another and that officers, who must often act swiftly,
cannot be expected to cross-examine their fellow
officers about the foundation for the transmitted
information.†. . . For example, if the dispatcher in this
case had been provided adequate facts from a reliable
informant to establish a reasonable suspicion that
defendant was armed, common sense tells us that the
dispatcher had the power to delegate the actual stop to
officers in the field. On the other hand, if the
information received by the dispatcher or headquarters
fell short of the suspicion required by law for an
investigatory stop, the fact that Officers Williams and
Milton relied in good faith on the dispatch would not
make the stop a constitutional one. Ultimately, the
State must prove that a warrantless, investigatory stop
was based on reasonable and articulable suspicion, and
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failing that any evidence obtained as a result of an
unconstitutional stop must be suppressed.
[ 187 N.J. at 457-58 (citations omitted).]
As our Supreme Court recently held, "[i]n determining whether reasonable
suspicion exists, a court must consider 'the totality of the circumstances — the
whole picture.'" Nelson, slip op. at 15 (quoting State v. Stovall, 170 N.J. 346,
361 (2002)). Looking at the "whole picture" here, the critical question is,
assuming the truth of Day's statements set forth in the search warrant affidavit,
did the information from the CIs give Day or his colleagues the reasonable
suspicion necessary to detain defendant for purposes of the dog sniff? Put
another way, viewed wholly apart from the traffic infraction, would the CIs'
information have justified the police in detaining defendant in order to conduct
an investigatory stop? We conclude it would not.
The CIs told the police that defendant was selling large amounts of drugs
in the City of Vineland. One CI told Officer Selby that defendant was "currently
trafficking heroin and cocaine within the city of Vineland . . . within the last
week of February 2016." Another CI told Officer Maslanich that defendant "has
been and still is selling a large quantity of heroin and cocaine within the city of
Vineland" in "the week of March 1 through March 8." The affidavit described
the ways in which the CIs had proven reliable in the past in other cases.
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However, the affidavit was devoid of any other details about this case, such as
the factual basis for either CI's knowledge about defendant's activities, whether
defendant was allegedly selling drugs from his car or from a house, a description
of the car defendant drove, or whether he was known to transport the drugs
himself. 2 See State v. Walker, 213 N.J. 281, 291 (2013); State v. Zutic, 155 N.J. 103, 113 (1998). The CIs' information did not approach the specificity
found sufficient in other cases such as State v. Birkenmeier, 185 N.J. 552, 561
(2006).
Neither Selby nor Maslanich testified at the suppression hearing, so there
was no evidence of further details they may have received from the CIs. Unlike
Nelson, in which the officers observed multiple suspicious circumstances to
corroborate an informant's tip, here Day did not provide any additional
information to support a reasonable suspicion that defendant could have drugs
in his car. See Nelson, slip op. at 5-6. For example, Day did not testify that he
2
As previously noted, the affidavit was submitted in support of a search warrant
for defendant's car. By that time, the police already had evidence of the positive
dog sniff and had discovered the probable "trap" in the front passenger seat.
Perhaps the affidavit contained so little detail about the CIs' observations
because it was not thought necessary to obtain the warrant. However, for
purposes of the suppression hearing, detail about the CIs' information was
critically important, as it was the only possible justification for the investigative
detention.
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smelled CDS or that defendant was unaccountably nervous. According to Day,
defendant was calm and cooperative.
In upholding the dog sniff, the motion judge relied on State v. Leggette,
441 N.J. Super. 1 (App. Div. 2015), rev'd on other grounds, 227 N.J. 460 (2017).
However, in Leggette, and unlike this case, the officer had reasonable grounds
to detain defendant based on the strong smell of burnt marijuana on the porch
where defendant was standing. 441 N.J. Super. at 28-29. In this case, the bald,
uncorroborated assertions by the two CIs were constitutionally inadequate to
justify prolonging what was otherwise a routine traffic stop for a broken tail
light.
At a hearing on a motion to suppress, the State must prove by a
preponderance of the evidence that the stop, or its extension, was reasonable.
"The State has the burden of proof to demonstrate by a preponderance of the
evidence that the warrantless seizure was valid.†State v. O'Neal, 190 N.J. 601,
611 (2007); Atwood, 232 N.J. at 437-38. In this case, the State simply failed to
meet its proof burden.
Clearly, defendant's consent to the search of his car, which he gave only
after the unlawful detention and the dog sniff, was "the product of the
'exploitation' of the unlawful . . . detention." State v. Shaw, 213 N.J. 398, 414
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(2012) (citations omitted); see also State v. Carty, 170 N.J. 632, 647 (2002). It
cannot serve as an intervening circumstance that would "purge[] the taint" from
the eventually-discovered contraband. Shaw, 213 N.J. at 421; State v. Smith,
155 N.J. 83, 101 (1998). The search warrant suffers from the same
constitutional infirmity, since it relied heavily on the dog sniff and the resulting
partial search of the car. See Atwood, 232 N.J. at 449. Suppression of the
evidence is required. Shaw, 213 N.J. at 422.
Accordingly, we remand to the trial court to enter an order granting
defendant's suppression motion and for further proceedings consistent with this
opinion.3
Reversed and remanded. We do not retain jurisdiction.
3
In light of our disposition of the appeal, we need not address defendant's
remaining arguments.
