State v Goldsmith A hunch did not amount to objectively reasonable and ...

State v O D A C Statement suppressed where detective repeatedly underm...

State v Radel Supreme Court rejects protective sweep of building where d...

DCPP v. D.C.A. and J.J.C.B.

 Based on the plain language of the 2021 Amendment, the Court concurs with the trial court and Appellate Division that the Legislature did not intend to bar trial courts from considering evidence of the child’s relationship with the resource family when they address the fourth prong of N.J.S.A. 30:4C-15.1(a).  The trial court properly considered the relationships between the children and their resource families when it considered the fourth prong of the best interests test, N.J.S.A. 30:4C-15.1(a)(4), and its determination as to all four prongs of that test was grounded in substantial and credible evidence in the record. 

State v. Michael Olenowski Decided November 15, 2023 (A-56-18)

 State v. Michael Olenowski Decided November 15, 2023 (A-56-18)  

SABATINO, P.J.A.D. (temporarily assigned), writing for the Court. 

In State v. Olenowski (Olenowski I), 253 N.J. 133 (2023), the Court adopted for criminal cases a non-exclusive, multi-factor test for the reliability of expert testimony patterned after the standard established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court now considers whether Drug Recognition Expert (DRE) testimony is reliable and admissible under that standard. The Court also considers the appropriate standard of review for Daubert-based expert reliability determinations in criminal appeals. 

N.J.S.A. 39:4-50 prohibits impaired driving, whether the impairment is caused by alcohol or one or more drugs. A driver whose blood alcohol concentration (BAC) level exceeds the 0.08% limit prescribed by that statute is guilty -- per se -- of driving while intoxicated. But there is no equivalent per se violation in this state for persons who drive with impairment-causing drugs in their system. 

Detecting and proving that a driver ingested and was under the influence of drugs while behind the wheel can be challenging. To enable such detection, law enforcement officials and researchers developed a twelve-step protocol: 

(1) a breath alcohol test;
(2) an interview of the arresting officer;
(3) a preliminary examination and first pulse check;
(4) a series of eye examinations;
(5) four divided attention tests;
(6) a second examination and vital signs check;
(7) a dark room examination of pupil size and ingestion sites; (8) an assessment of muscle tone;
(9) a check for injection sites;
(10) an interrogation of the driver by the DRE; 

(11) a final opinion, based on the totality of the examination, about whether the driver is under the influence of a drug or drugs; and 

(12) a toxicological analysis. 

Defendant Michael Olenowski was convicted of drug-impaired driving based in part on DRE evidence. His convictions were upheld on appeal, and the Court granted certification to determine whether DRE testimony is admissible under the “general acceptance” admissibility standard established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 236 N.J. 622 (2019). 

Finding that the record was not sufficient to make that determination, the Court asked a Special Master to conduct a hearing. 247 N.J. 242, 244 (2019). The Special Master concluded that DRE evidence should be admissible under Frye. 

In subsequent briefing to the Court, several counsel focused upon error rates associated with DRE evidence. Because error rates are expressly considered under Daubert, but not Frye, the Court asked for supplemental briefing on “whether this Court should depart from Frye and adopt the principles of Daubert in criminal cases.” Both parties and nearly all of the amici advocated that the Court adopt the Daubert standard, similar to its previous adoption of Daubert-based principles for civil cases in In re Accutane Litigation, 234 N.J. 340 (2018). 

In Olenowski I, the Court adopted a “Daubert-type standard” for determining the reliability of expert evidence in criminal and quasi-criminal cases and remanded this matter to the Special Master to apply that standard. 253 N.J. at 153, 155. The Special Master concluded that the twelve-step DRE protocol satisfies the reliability standard of N.J.R.E. 702 when analyzed under the methodology-based Daubert- Accutane standard. The Court now considers that conclusion. 

HELD: Daubert-based expert reliability determinations in criminal appeals will be reviewed de novo, while other expert admissibility issues are reviewed under an abuse of discretion standard. Here, the extensive record substantiates that DRE testimony sufficiently satisfies the Daubert criteria to be admissible, with the following four limitations and safeguards: 

* The DRE may opine only that the evaluation is “consistent with” the driver’s ingestion or usage of drugs, not that it was actually caused by drugs. 

* If the State fails to make a reasonable attempt to obtain a toxicology report without a persuasive justification, the DRE testimony must be excluded. 

* The defense must be afforded a fair opportunity to impeach the DRE.
* Model instructions to guide juries about DRE evidence should be considered. 

1. Most evidentiary rulings are reviewed for an abuse of discretion. In Accutane, the Court held that trial courts’ expert reliability determinations should be reviewed under that standard in civil matters. See 234 N.J. at 392. In criminal law, however, a trial court’s reliability determination under Frye -- i.e., its determination of whether the relevant scientific community generally accepts a scientific theory, test, or technique -- was accorded less deferential review than other evidentiary decisions. Going forward, in New Jersey criminal and quasi-criminal cases in which the trial court has admitted or excluded an expert witness based upon Daubert reliability factors, appellate courts shall review that reliability determination de novo. However, other case-specific determinations about the expert evidence -- such as whether the witness has sufficient expertise, whether the evidence can assist the trier of fact, and whether the relevant theory or technique can properly be applied to the facts -- should be reviewed for an abuse of discretion. (  

2. The United States Supreme Court identified in Daubert a list of four factors for assessing reliability of an expert’s methodology under Fed. R. Evid. 702: 

(1) whether the scientific theory or technique can be, or has been, tested; (2) whether it has been subjected to peer review and publication; 

(3) the known or potential rate of error as well as the existence of standards governing the operation of the particular scientific technique; and 

(4) general acceptance in the relevant scientific community. 

Daubert made clear that the factors are non-exclusive and that the reliability inquiry is “flexible,” signaling that other considerations may also be pertinent. See 509 U.S. at 594. For ease of discussion in this particular case, the Court reorganizes the Supreme Court’s listing of Daubert factors in a few ways and applies them in this sequence: (A) adequacy of standards; (B) publication and peer review; (C) testability and error rate; and (D) general acceptance.   

3. Adequacy of Standards. The twelve-step DRE process is elaborate and standardized. It is grounded in a program that has been used across the nation and abroad for decades and is periodically modified. The Court reviews counter- arguments, including the concern that DREs are neither physicians nor medical professionals, and explains why they do not alter its conclusion.  

4. Peer Review and Publication. The Special Master appropriately considered not only the existence of roughly two dozen studies but also their substantive content and conclusions. He determined that they “support the State’s position that the DRE protocol has consistently been found to be a reliable method for detecting impairment by drugs.” Although the studies have certain limitations, the Court holds that they meet the Daubert factor of publication and peer review. 

5. Testability and Error Rate. “Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” Daubert, 509 U.S. at 593. The term “ordinarily” conveys that a judge’s findings of testability and reasonably low error rates from test results are expected -- but not always required -- elements of a proponent’s reliability showing. As the Special Master recognized, there are inherent practical limitations within the DRE program that complicate efforts to test the program results empirically and to obtain meaningful error rates. Constitutional, ethical, and practical constraints make the DRE program less “testable” and the error rate less “knowable” than the ideal. After reviewing the New Jersey data in the record, the Court concludes that the testability and false- positive error rate aspects of the Daubert analysis are largely inconclusive but finds that the inconclusiveness should not categorically bar admission of this useful evidentiary source. The Court rejects the assertion that testability and error rates are categorically the most important Daubert factors.   

6. General Acceptance. For many years, the DRE protocol has been widely and regularly used across this country and abroad. No state has discontinued it, and no state’s highest court has nullified it. The protocol has been studied multiple times and periodically revised and enhanced. Although it has imperfections, the protocol has stood the test of time in its widespread acceptance.   

7. Many facets of the DRE protocol weigh in favor of its reliability, but the protocol has several weaknesses as well. It does not establish that a driver is actually impaired, or that the drug categories identified by the DRE are definitively the cause of any such impairment. And there are palpable risks of confirmation bias when a DRE officer administers the protocol, particularly in the more subjective aspects of the examination. Thus, although Court finds DRE testimony sufficiently reliable to be admitted in our courts, it adopts several limitations on the admissibility and probative use of a DRE’s opinion in criminal and quasi-criminal cases: 

First, a DRE is only allowed to opine in court that the protocol has presented indicia that are “consistent with” the driver’s usage of certain categories of drugs. The DRE’s expert opinion testimony must not go further than that. Proof of consistency can be pertinent as one component within the totality of the evidence to support an inference that drugs caused a driver’s impairment. 

Second, a toxicology report corroborating a DRE’s opinion is important evidence. DRE officers must make a reasonable attempt to obtain a toxicology report when it is feasible to do so -- and preferably to obtain a blood sample rather than a urine sample -- when their protocol indicates at Step 11 an opinion of consistency with drug use. If the court finds no reasonable attempt was made, despite its feasibility, the DRE evidence shall 

 

be excluded. However, if the State establishes a reasonable justification for the lack of a toxicology report, then the DRE evidence is admissible, subject to defense impeachment and counterproofs. 

Third, if the trial court admits DRE evidence for the State, the defense shall have a fair opportunity to impeach or rebut it through cross-examination of the DRE and with counterproofs. 

Fourth, it may be beneficial for the court to provide jurors with an explanatory instruction about the DRE evidence, such as the consistency limitation. The Court refers this subject to the Model Criminal Jury Charges Committee for its consideration. 

A positive DRE opinion at Step 11 is not dispositive of a driver’s guilt of driving under the influence of drugs. Unlike a BAC reading of .08% or more in a drunk driving case, the DRE’s opinion is not used as a per se test of guilt. Instead, the DRE testimony is just one part of the evidence as a whole, and it can be amplified or rebutted. The State would have a much steeper burden to prove a driver’s guilt when it lacks corroborating proof from a toxicology report. 

The reports and findings of the Special Master are ADOPTED AS MODIFIED. Olenowski’s convictions are VACATED. 

 

IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF K.M.G.

IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF K.M.G. 

 In this appeal of first impression, the court must determine whether the "clean slate" statute, N.J.S.A. 2C:52-5.3, which permits an expungement of a New Jersey criminal record if ten years have passed "from the date of the person's most recent conviction," applies to a conviction from another state.  (Emphasis added).  The trial court entered an order expunging petitioner's New Jersey criminal record after determining her 2017 Virginia misdemeanor conviction did not preclude eligibility for expungement under the "clean slate" statute because an out-of-state conviction does not constitute a "most recent conviction."  The State contends the trial court erred in its interpretation of the "clean slate" statute, arguing petitioner's Virginia conviction must be considered, and because it was entered within ten years of her petition for expungement, her petition should have been denied. 

The court reverses because the text of the "clean slate" statute and related expungement statutes do not support the trial court's interpretation to preclude consideration of an out-of-state conviction from the phrase "most recent conviction."  Moreover, such interpretation defies common sense given the "clean slate" statute's purpose to expunge a criminal record of an applicant who has not violated the law within ten years of their last New Jersey conviction.  Consequently, petitioner's Virginia offense presently disqualifies her from expungement of her New Jersey criminal record under the "clean slate" statute.

A-0363-22

State v Wade Supremes determined confession suppressed detective did n...

Supreme Court determined Statement /confession suppressed where detective did not honor right to counsel State v. Wade 252 N.J. 209 (N.J. 2022)

State v Peralta

No reasonable suspicion to support an investigative detention State v. Peralta

Olenowski Supreme Court adapts the Daubert standard to make it easier f...

 

Supreme Court changes to adapt the Daubert standard to make it easier for Scientific evidence to be admitted State v. Olenowski 253 N.J. 133 (N.J. 2023)

Gomes case If someone had a conditional discharge on a pot charge person...

If someone had a conditional discharge on a pot charge which has now been “removed”, person can have another CD or PTI State v. Gomes 472 N.J. Super. 515 (App. Div. 2022)

State v Duffy Suppression where parked car did not qualify as investiga...

Suppression where parked car did not qualify as investigative detention State v. Duffy unreported

State v Coviello Interlock issues post plea are to be resolved by court...

 

Interlock issues post plea are to be resolved by court, not MVC State v. Coviello 252 N.J. 539 (N.J. 2023)

R M M v E S M DV hearings can be heard via Zoom R.M.M. v. E.S.M.

 

DV hearings can be heard via Zoom R.M.M. v. E.S.M.

J T S v J S FRO reversed where no harassment J.T.S. v. J.S.

 

FRO reversed where no harassment J.T.S. v. J.S.

Suppression where dispatcher just assumed robber was black State v Scott

Suppression where dispatcher just assumed robber was black State v Scott 474 N.J. Super. 388

STATE OF NEW JERSEY VS DARRYL NIEVES

 In these matters, the court considered the scientific reliability of expert testimony that shaking alone can cause the injuries associated with shaken baby syndrome (SBS), also known as abusive head trauma (AHT).  The State sought to admit the testimony to prove aggravated assault and child endangerment charges against defendants Darryl Nieves and Michael Cifelli, fathers of infant sons who exhibited associated symptoms while in their respective fathers' care.  Following a hearing in the Nieves matter pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial judge concluded that expert testimony of shaking-only SBS/AHT was not scientifically reliable and barred admission of the evidence at trial.  The trial judge in the Cifelli matter adopted the finding. 

The court affirmed the judge's decision in Nieves, holding that the State failed to establish SBS/AHT's general acceptance within the medical community through expert testimony, supporting authoritative scientific studies, and judicial opinions.  Where, as here, the underlying theory integrates multiple scientific disciplines, the proponent must establish cross-disciplinary validation to establish reliability.  The State failed to do that here.  Despite its seeming acceptance in the pediatric medical community, the evidence showed a real dispute surrounding the hypothesis that the biomechanical principles underlying SBS/AHT actually supported the conclusion that shaking only can cause the injuries associated with SBS/AHT.

STATE OF NEW JERSEY VS. DENNIS F. GARGANO,

 STATE OF NEW JERSEY VS. DENNIS F. GARGANO,

During the investigation of an alleged drug distribution network, the State Police obtained wiretap orders authorizing the interception of communications on various cellular phones pursuant to the New Jersey Wiretapping and Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37.  By leave granted, the State challenged an order suppressing all intercepted communications that followed the interception of a privileged marital communication between one of the defendants and his codefendant spouse.  The trial court entered the order under N.J.S.A. 2A:156A-21, which in pertinent part mandates the suppression of "the entire contents of all intercepted wire, electronic[,] or oral communications obtained during or after any interception" that is "unlawfully intercepted" or "not made in conformity with" the wiretap order or authorization.  N.J.S.A. 2A:156A-21(a) and (c). 

The court affirms the order based on its interpretation of the Act.  The State concedes that at the time of the interception of the initial privileged marital communication, N.J.R.E. 509 did not include a crime-fraud exception, and, as a result, the initial and subsequent 305 intercepted privileged marital communications are inadmissible at defendants' trial under the then-extant version of N.J.R.E. 509.  The State argues interception of the initial privileged marital communication did not trigger the mandatory suppression of all subsequent wiretap interceptions during the investigation under N.J.S.A. 2A:156A-21 because interception of the privileged marital communication was neither unlawful nor made in violation of the wiretap orders. 

The court concludes that not every interception of a privileged marital communication is unlawful and requires application of N.J.S.A. 2A:156A-21's suppression remedy.  The court finds incidental interceptions of privileged communications during the mandatory intrinsic minimization process attendant to the execution of every wiretap order are anticipated by, and authorized by, the Act, and do not trigger N.J.S.A. 2A:156A-21's suppression remedy. 

The court holds that, because the State Police knew the initial interception was of a communication between married spouses, made no effort to minimize the interception, and monitored the communication beyond the time necessary to determine if it was privileged, the interception was unlawful under the Act and violated the wiretap order, which expressly required minimization.  The court rejects the State's argument suppression is not required because the initial marital communication, and the 305 subsequent marital communications, were intercepted based on the good faith but erroneous belief the crime-fraud exception recommended by the Court in State v. Terry, 218 N.J. 224 (2014), and later enacted, N.J.S.A. 2A:84A-22(2)(e), L. 2015, c. 138, § 2, eff. Nov. 9, 2015, would apply retroactively such that the interceptions would be supported on that basis. 

2C: 20-11C(4)-Shoplifting Less Than $200

 

2C :20-11  Shoplifting.    a.   Definitions.  The following definitions apply to this section:    (1)   "Shopping cart"  means those push carts of the type or types which are commonly provided by grocery stores, drug stores or other retail mercantile establishments for the use of the public in transporting commodities in stores  and markets and, incidentally, from the stores to a place outside the store;    (2)   "Store or other retail mercantile establishment"  means a place where merchandise is displayed, held, stored or sold or offered to the public for sale;    (3)   "Merchandise"  means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof;    (4)   "Merchant" means any owner or operator of any store or other retail mercantile establishment, or any agent, servant, employee, lessee, consignee, officer, director, franchisee or independent contractor of such owner or proprietor;    (5)   "Person" means any individual or individuals, including an agent, servant or employee of a merchant where the facts of the situation so require;    (6)   "Conceal" means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation;    (7)   "Full retail value" means the merchant's stated or advertised price of the merchandise;    (8)   "Premises of a store or retail mercantile establishment" means and includes but is not limited to, the retail mercantile establishment; any common use areas in shopping centers and all parking areas set aside by a merchant or on behalf of a merchant for the parking of vehicles for the convenience of the patrons of such retail mercantile establishment;    (9)   "Under-ring" means to cause the cash register or other sale recording device to reflect less than the full retail value of the merchandise;    (10) "Antishoplifting or inventory control device countermeasure" means any item or device which is designed, manufactured, modified, or altered to defeat any antishoplifting or inventory control device;    (11) "Organized retail theft enterprise" means any association of two or more persons who engage in the conduct of or are associated for the purpose of effectuating the transfer or sale of shoplifted merchandise.    b.   Shoplifting.  Shoplifting shall consist of any one or more of the following acts:    (1)   For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.    (2)   For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.    (3)   For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.    (4)   For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.    (5)   For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof.    (6)   For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the  merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.    c.   Gradation.  (1) Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is  $75,000 or more, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000 or more.     (2)   Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $500 but is less than  $75,000, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is less than $1,000.    (3)   Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $200 but does not exceed $500.    (4)   Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $200.    The value of the merchandise involved in a violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons, or were committed in furtherance of or in conjunction with an organized retail theft enterprise.    Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C :43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows:  for a first offense, at least ten days of community service;  for a second offense, at least 15 days of community service;  and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days.    d.   Presumptions.  Any person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.    e.   A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover the merchandise by taking the person into custody, may, for the purpose of attempting to effect recovery thereof, take the person into custody and detain him in a reasonable manner for not more than a reasonable time, and the taking into custody by a law enforcement officer or special officer or merchant shall not render such person criminally or civilly liable in any manner or to any extent whatsoever.    Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the offense of shoplifting as defined in this section.    A merchant who causes the arrest of a person for shoplifting, as provided for in this section, shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting.    f.   Any person who possesses or uses any antishoplifting or inventory control device countermeasure within any store or other retail mercantile establishment is guilty of a disorderly persons offense.

Permissibility of Plea Agreements in Remaining State v. Cassidy DWI Cases

  Permissibility of Plea Agreements in Remaining State v. Cassidy DWI Cases

ALCOTEST CASES - PERMISSIBILITY OF PLEA AGREEMENTS IN
REMAINING STATE V. CASSIDY DWI CASES - SUPREME COURT ORDER

In the attached June 27, 2023 Order, the Supreme Court confirms the continuance of its December 18, 2019 rule relaxation permitting plea bargaining in post-conviction relief driving while intoxicated (DWI) cases affected by the Court's decision in State v. Eileen Cassidy. 235 N.J. 482 (2018).

As background, plea bargaining DWI cases is prohibited by the Guidelines for Operations of Plea Agreements in the Municipal Courts of New Jersey, (Guidelines), an Appendix to Part VII of the Court Rules.

In State v. Cassidy. 235 N.J. 482 (2018), the Court held Alcotest results from certain breath-test machines that were calibrated without using a thermometer that produces NIST-traceable temperature readings in the calibration process to be inadmissible as evidence in DWI cases. The Court by Order dated January 29, 2019 established a centralized process for the handling of these cases and by Order dated December 18, 2019 relaxed the Guidelines to permit plea agreements in postconviction relief cases affected by Cassidy. By Order of May 6, 2022 the Court concluded the centralized process for the handling of Cassidy matters, effective June 1, 2022 .

The attached June 27, 2023 Order confirms and clarifies that the Court's May 6, 2022 Order did not terminate the temporary and limited rule relaxation in the Court's December 18, 2019 Order and that plea agreements in Cassidy affected post-conviction relief proceedings may proceed.

This Order also provides that before a court acts on a proposed plea agreement, the Municipal Court Prosecutor shall submit the proposed plea agreement to the Office of Attorney General or the Attorney General's designee
for review.

The Guidelines prohibiting plea bargaining in DWI cases remain in full force and effect for cases not affected by the Court's decision in Cassidy.

Document Date: July 19, 2023

Tip of black man with gun not enough for Terry stop here State v. Hill A-2119-21

 Tip of black man with gun not enough for Terry stop here State v. Hill A-2119-21

Defendant appealed the denial of his motion to suppress a handgun seized during a Terrystop based on an alleged tip from a confidential informant. At the suppression hearing, the arresting officer testified that he and his partner were dispatched to respond to a report of a Black man with a gun. The officers got the report from detectives working for the prosecutor's office, who allegedly received a tip from a confidential informant. Neither officer knew anything about the CI. The officers spotted defendant, who matched the description in the report. The officers did not observe defendant do anything illegal and did not see any evidence that he was armed. However, when defendant turned away from the officers, they grabbed his hands and performed a pat-down, recovering a handgun. The trial court denied defendant's suppression motion, distinguishing the case from Florida v. J.L., 529 U.S. 266, by noting that defendant's act of reaching towards his waistband while turning away from the officers, along with the corroborated description of defendant, justified the pat-down. On appeal, the court reversed, agreeing that the officers lacked reasonable suspicion to stop and frisk defendant. The court ruled that defendant's "unusual movement" was insufficient to provide reasonable suspicion for the stop, which was based on an anonymous tip about a Black man with a gun. The court noted that the arresting officers knew nothing about the CI who allegedly provided the tip. Source NJLJ July 19, 2023

Defendant in private complaint entitled to discovery of records State v. Burke A-0503-22

Defendant in private complaint entitled to discovery of records State v. Burke  A-0503-22  

Defendant appealed orders denying a forensic examination of the complainant's cellphone and discovery of complainant's employment and disciplinary records with the State Police in a quasi-criminal municipal court matter initiated by a civilian complainant. A verbal altercation developed between complainant and defendant. Police officer took statements about an ongoing property dispute. Complainant did not make any mention of traffic violations allegedly committed by defendant. Officer concluded the matter was a "civil issue" and no action was needed. A month later, complainant swore out a complaint against defendant for alleged traffic violations during the dispute. Defendant pled not guilty and requested discovery. Complainant only provided printed images of alleged traffic violations he recorded on his cellphone. State denied defendant's discovery requests as not relevant. Municipal judge entered a protective order barring discovery of complainant's records and employment information and forensic examination of the cellphone. Defendant appealed to the Law Division and State introduced an expungement order for the disciplinary and criminal records requested by defendant. Law Division denied defendant's request. Court reversed and remanded finding the records sought by defendant were relevant to impeachment evidence and State had an affirmative duty to gather and disclose any relevant Brady/Giglio material from State's testifying witnesses. source NJLJ July 19, 2023 

Hindering his own apprehension affirmed State v. Shabaan A-0559-21

 Hindering his own apprehension affirmed  State v. Shabaan A-0559-21  

Defendant appealed his convictions for hindering his own apprehension by providing a false name to law enforcement and driving with a revoked or suspended license. During trial, defendant and his wife testified that she was the driver and defendant was in the rear of the minivan with their children. The arresting officer testified that at precinct headquarters, defendant broke down and admitted he was the driver. Municipal court found the testifying police officer more credible than defendant and his wife and thus found defendant guilty on the charges of hindering apprehension and driving under a suspended license. Defendant appealed, and trial de novo was conducted on a review of the municipal court record. Trial court rejected defendant's assertions that municipal court erred by: failing to conduct a hearing on the admissibility of his statement at the police headquarters; crediting the officer's testimony; and permitting testimony regarding a records abstract showing the names that dispatch had run through the NCIC database. Trial court concluded defendant's statement admitting he was the driver would be admissible as a statement against interest and was voluntary rather than the result of interrogation. Ultimately, however, trial court did not consider defendant's statement in determining guilt on the charges alleged. Trial court further deemed the records abstract and the NCIC information it reflected were admissible as business records and public records. Finally, trial court independently credited the officer's testimony and deemed defendant's testimony, and that of his wife, to be self-serving and not credible. Trial court imposed same fine, costs, and assessments imposed by municipal court. Defendant appealed. Court affirmed. Court rejected defendant's challenges as lacking sufficient merit to warrant further discussion. Court affirmed for substantially the reasons set forth by trial court, noting that trial court did not consider defendant's police headquarters statement in its determination, the disputed abstract and NCIC information were not admitted into evidence, and trial court's factual and credibility findings were supported by the record.

source NJLJ July 31, 2023

State v. Evangelista A-2481-21

Expired Brazil license no defense to driving without license in NJ

State v. Evangelista A-2481-21

Defendant appealed trial court's order after a trial de novo of his municipal conviction for driving without a license. Defendant, a Brazilian national residing in New Jersey, was charged with the unlicensed operation of a motor vehicle and other motor vehicle violations. With representation by counsel, defendant appeared via Zoom at a remote municipal court proceeding in which he pleaded guilty to violating N.J.S.A. 39:3-10 in exchange for dismissal of the remaining charges. Municipal court accepted the plea and sentenced defendant to thirty days in jail. Defendant appealed and obtained a trial de novo. Trial court upheld municipal court's decision and sentenced defendant to thirty days in jail. Defendant appealed, arguing municipal court applied an obsolete version of N.J.S.A. 39:3-10, he was not guilty because he was previously licensed in Brazil, his sentence was illegal, and the proceedings were flawed because no Portuguese translator was provided. Court affirmed. As amended in 2021, N.J.S.A. 39:3-10 might have made it easier for defendant, as an immigrant, to obtain a valid New Jersey driver's license, but the fact remained that defendant still had not done so on the date of his violation in October 2021. Defendant knew he was not permitted to drive in New Jersey with his Brazilian license because he had a prior conviction for the same infraction, for which he received jail time. Nor was defendant's sentence illegal. The statute provides that a driver who has never been licensed, in New Jersey or elsewhere, may only be punished with a fine, but defendant previously held a driver's license in Brazil. That made him eligible for imprisonment under N.J.S.A. 39:3-10. Defendant's sentence also was in keeping with his record of infractions and related factors. Finally, there was no flaw in the proceedings merely because Portuguese was defendant's first language. Neither defendant nor his counsel requested an interpreter or indicated defendant had difficulty communicating in English. source NJLJ July 26, 2023

 

Blood test could be given where driver claimed chest tightness State v. Brennan A-1951-20

  Blood test could be given where driver claimed chest tightness State v. Brennan  A-1951-20

Defendant appealed his de novo trial conviction for DWI and reckless driving. An officer responding to a report of a suspicious vehicle observed a vehicle idling its engine in the middle of the road. The officer approached the vehicle and saw defendant in the driver's seat, noting a strong odor of alcohol and defendant's slurred speech and watery eyes. Defendant was ordered out of the vehicle and submitted to field sobriety tests. Although defendant advised the officers that he had a leg injury, he claimed that he could still perform the leg lift test. However, the officers testified that defendant could not remain steady for more than a couple of seconds. The officers also determined that defendant failed the heel-toe walk test. The officers accordingly arrested defendant. Although defendant agreed to submit to an Alcotest, he claimed to be suffering symptoms of an asthma attack. Defendant initially requested his inhaler, but when the officers could not find it in defendant's vehicle and he began claiming chest tightness, defendant was transported to the hospital without having performed the Alcotest. At the hospital, defendant declined to submit to a blood draw, leading officers to apply for a warrant. When officers could not reach a municipal judge, they conducted a warrantless blood draw based on exigency. Testing revealed that defendant had a BAC of 0.19. Defendant moved to suppress the blood draw based on the lack of probable cause or a search warrant. The municipal court denied the motion, finding that there was probable cause to arrest defendant based on his unsatisfactory performance of field sobriety tests. Defendant appealed to the trial court, which ruled that the officers had not unreasonably or deliberately created an exigency when they failed to perform an Alcotest or obtain a search warrant for the blood draw. On appeal, the court affirmed defendant's conviction. The court agreed that exigent circumstances excused the warrant requirement to obtain a blood draw since defendant required medical attention for his asthma symptoms after officers could not locate his inhaler. source NJLJ July 24, 2023 

Saying I don’t want to talk invokes Miranda State v. Bass A-2533-21

Saying I don’t want to talk invokes Miranda State v. Bass 

Defendant appealed her conviction after she entered a conditional guilty plea. Police responded to a stabbing in defendant's father's home. Officers found defendant with blood on her clothes near her father's house and took her to police station to interview her. Detective testified defendant was a suspect in the killing but was not under arrest. Detectives told her they would read her Miranda rights to her, she responded "So I'm locked up?" and detectives said "No." That conversation occurred several times. Defendant also clearly said "I don't want to talk now…" and "I don't have nothing to say" before she waived her rights by signing the Miranda card. Defendant finally said I ain't got shit else to say." Detective testified it was her "general practice" to continue to give Miranda warnings even if a suspect said she did not wish to speak before the full warnings were given and asserted defendant "wanted to control the interview." Court reversed trial court's order denying defendant's motion to suppress and remanded the case. Court found trial court erred in ignoring "specific language" and found defendant invoked her right to silence three minutes into the questioning when she said "I don't want to talk now…" Defendant did not have to wait for the proper administration of her Miranda rights to invoke her right to silence. A-2533-21  NJLJ June 30, 2023

STATE OF NEW JERSEY VS. DAANDRE J. WADE

 In May 2019, defendants were found in possession of two loaded handguns while driving a car on public roads.  Neither defendant had a permit to carry a handgun.  Both defendants were indicted for second-degree unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b)(1).  Following the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022), defendants moved to dismiss those criminal charges, arguing that the version of the gun-carry permit statute in effect at the time of their arrest, N.J.S.A. 2C:58-4 (2018), was facially unconstitutional under Bruen.  The trial court agreed and dismissed the charges.  This court granted the State leave to appeal the order.

The court holds that defendants did not have standing to challenge the gun permit statutes because neither defendant had applied for a handgun-carry permit. Nevertheless, the court addresses the merits of the constitutional challenge and holds that the justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018) was severable and the remaining provisions of N.J.S.A. 2C:58-4 (2018), as well as N.J.S.A. 2C:39-5(b)(1), were constitutional and enforceable.  Accordingly, the court reverses the order dismissing the charges and remands with direction that the trial court reinstate both counts of unlawful possession of a handgun without a permit.

STATE OF NEW JERSEY VS. TYSHON M. NIEVES

 In this appeal from an order denying defendant's motion to suppress evidence seized following the 5:00 a.m. execution of a knock-and-announce search warrant at a residence, the court finds the law enforcement officers did not wait a reasonable period after knocking and announcing their presence before forcibly breaching and entering the home's front door.  The court determines that based on the circumstances presented, the officers' forcible entry into the home after waiting less than five seconds after after knocking and announcing their presence was unreasonable and rendered the subsequent search of the home and seizure of evidence unconstitutional.  The court determines the exclusionary rule requires suppression of the evidence, reverses the order denying the suppression motion, and remands for further proceedings.

Leander Williams v. New Jersey State Parole Board

The Parole Board cannot mandate participation in an RTP for inmates administratively paroled under the EYWO Act. Although N.J.S.A. 30:4-123.59 generally authorizes the Parole Board to impose parole conditions on adult inmates who have been administratively released under the EYWO Act, an RTP is not among the conditions that can be imposed in that setting.

State v. Quintin D. Watson

 (1) Based on the identification evidence alone, defendant’s conviction cannot stand. The inherently suggestive nature of first-time in-court identifications, conducted in front of a jury, risks depriving defendants of their due process rights. The Court holds that first-time in-court identifications may only be conducted when there is good reason for them and sets forth certain practices that must be observed in connection with in-court identifications. (2) The narration evidence in this case also ran afoul of the evidence rules, which do not allow for continuous, running commentary on video evidence by someone who has merely studied a recording. The Court identifies certain safeguards to underscore the limited use of narration evidence and adds that a party intending to present narration evidence should provide opposing counsel with a written summary of the proposed testimony before trial. (3) Confrontation Clause challenges are fact-specific. The testimony here about consultation with other law enforcement agencies violated defendant’s right to confrontation, and the Court provides guidance for remand.

State v. Dante C. Allen

 The Court disagrees with the Appellate Division’s conclusion that the trial court should have excluded all the detective’s narration of the surveillance video. The trial court properly permitted the detective to testify about the manner in which he used the surveillance video to guide his investigation. Applying principles stated today in State v. Watson, _ N.J. _ (2023) (slip op. at 46-60), the detective’s testimony opining that the video showed defendant turning and firing his weapon should have been excluded from evidence. However, that error was harmless given the strength of the State’s evidence.

State v. Roberson Burney

The trial court erred in admitting both the testimony placing defendant’s phone at or near the crime scene and the first-time in-court identification. Those errors, in combination, deprived defendant of a fair trial.

STATE OF NEW JERSEY IN THE INTEREST OF M.P

 M.P., a juvenile, is charged with gun possession and participation in a murder.  He appeals the trial judge's decision to admit the statement he gave to detectives during a stationhouse interrogation, which was attended by his mother.  M.P. asks the court to adopt a new categorical rule that would prohibit police from conducting a stationhouse interrogation of a juvenile unless the minor has consulted with an attorney.  M.P. relies on neuroscience and behavioral science research that shows juveniles are not only more impulsive and compliant than adults but also tend to lack the cognitive skills to comprehend Miranda rights.  He contends that in view of advances in the scientific understanding of adolescent brain development, no juvenile should be subjected to a stationhouse interrogation—with or without parental participation—until the juvenile has consulted with counsel.

The court explains it has no authority to pronounce any such per se requirement.  While acknowledging there have been significant reforms to New Jersey's juvenile justice system in recent years based on scientific research on how a juvenile's brain develops and how it functions differently from a fully mature adult brain, the court holds those studies do not grant it authority to substantially rework the State's juvenile interrogation jurisprudence, and certainly not to overturn New Jersey Supreme Court precedents.  The court concludes that while the rules and principles announced in those precedents are not immutable, it is for our Supreme Court and the Legislature—not an intermediate appellate court—to weigh the benefits and costs of the major juvenile justice system policy shift M.P. proposes.

The court also declines M.P.'s request to revise the Miranda warnings to make them more comprehensible to adolescents.  While noting the current warnings are not sacrosanct and might be improved based on juvenile brain research, the court concludes the task of revising the warnings to address the inherent differences between adults and juveniles would benefit from a collaborative process the court cannot provide. 

Turning to the application of existing precedents to the present case, although the court is mindful of the deference it owes to the trial judge's factual findings, it concludes that considering all relevant circumstances, including M.P.'s intellectual challenges, mental conditions, highly emotional state, and the role his mother played, the State failed to prove beyond a reasonable doubt that M.P. knowingly, intelligently, and voluntarily waived his right against self-incrimination.  The court therefore reverses the trial judge's decision. 

The court rejects the State's argument that reviewing courts should not consider an interrogee's personal characteristics, such as intelligence and education background, if those circumstances were not known by or "noticeable" to police.  The court holds those circumstances remain relevant notwithstanding they may not manifest outwardly during an interrogation.  The court explains that reviewing courts do not employ a purely objective test when determining whether the State proved a valid Miranda waiver beyond a reasonable doubt, but rather consider the characteristics of the accused and not just the details of the interrogation.   

The court also rules the guidance the Supreme Court provided in State in Int. of A.A., 240 N.J. 341, 354 (2020)—which held police should provide an opportunity for a juvenile and parent to consult privately after Mirandawarnings are given—did not mandate a new rule of police procedure but rather amplified the existing totality-of-the-circumstances test.  Accordingly, the court reasons the rationale undergirding A.A. should be given retroactive effect.

STATE OF NEW JERSEY VS. JASON W. VANDEREE

 Defendant injected himself with fentanyl-laced heroin, lost control of an SUV he had been driving, his vehicle crashed into a gas station, and tragically killed three persons and injured others.  He pled guilty to three counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and was sentenced to an aggregate prison term of thirty years, with the requirement that he serve over twenty-five years before he is eligible for parole.

Defendant appeals from the denial of his motion to suppress and his sentence.  He argues that the warrantless search of his clothes, conducted at a hospital over an hour after his arrest, was unlawful, and that he is entitled to a resentencing.  The court holds that the search of his clothes was a lawful search incident to his arrest.  The court also holds that the sentencing court conducted the appropriate analysis and did not abuse its discretion in sentencing defendant to three consecutive prison terms of ten years for the death of each victim.  Accordingly, the court affirms defendant's convictions and his sentence. 

State v. Rami A. Amer

 The trial court did not violate defendant’s speedy trial rights under the IAD, and it properly denied defendant’s motion to dismiss his indictment. The Court does not agree with the Appellate Division that defense counsel waived defendant’s rights under the IAD. But the Court affirms the Appellate Division’s other determinations -- that the IAD’s 180-day time period was tolled during the pendency of defendant’s pretrial motions and that defendant was “brought to trial” when jury selection began prior to the deadline.

State v. Cornelius C. Cohen A-50-21

  State v. Cornelius C. Cohen A-50-21 Expanding the search to the engine compartment and trunk went beyond the scope of the automobile exception. Although the trooper smelled marijuana in the passenger compartment of the car, his initial search yielded no results and provided no justification “to extend the zone of the . . . search further than the persons of the occupants or the interior of the car.” State v. Patino, 83 N.J. 1, 14-15 (1980). As a result, the seized evidence should be suppressed. 

State v. Andreas M. Erazo A-16-22

 State v. Andreas M. Erazo A-16-22   Defendant voluntarily went to the police station to give a witness statement. At the police station, defendant was interviewed twice. During his first interview, defendant was not in custody and thus not yet owed Miranda warnings. The factors set forth in O’Neill therefore do not need to be considered to assess the admissibility of the second interview. And before police interviewed defendant the second time, they properly administered Miranda warnings. With his rights in mind, defendant executed a knowing, intelligent, and voluntary waiver. During his second interview, defendant confessed. Neither the Fifth Amendment nor state common law calls for suppression of defendant’s statements.

STATE OF NEW JERSEY VS. FRANCISCO ARTEAGA A-3078-21

STATE OF NEW JERSEY VS. FRANCISCO ARTEAGA A-3078-21  Following the robbery of a store in West New York, police retrieved surveillance video from a nearby building and sent a still photo from the video to the New Jersey Regional Operations Intelligence Center (NJROIC) to help identify the perpetrator using facial recognition technology (FRT).  When the NJROIC could not find a match, police sent all the raw video footage to the Facial Identification Section of the New York Police Department Real Time Crime Center (NYPD RTCC), where a detective captured a still image, compared it against the center's databases, and offered defendant as a possible match.

Police subsequently included the photo from the NYPD RTCC along with five filler photos to construct photo arrays to show two eyewitnesses.  The eyewitnesses identified defendant as the perpetrator, and he was subsequently charged.

Defendant sent the State a discovery demand containing thirteen items seeking information regarding the FRT used to identify him.  He also moved to suppress the out-of-court identifications by the eyewitnesses.  The trial court conducted a Wade[1] hearing and denied the suppression motion.  Meanwhile the State obtained documents from the NYPD RTCC answering two of the thirteen discovery demands.  Defendant moved to compel the State to answer the remaining discovery requests, arguing the discovery was:  necessary to impeach the eyewitness identification; impeach the police investigation; and exculpatory.  Defendant's motion included a declaration from an FRT expert, detailing why the information sought was relevant and explaining the vulnerabilities of FRT, including problems with its reliability.  The trial court denied the motion to compel.

On leave granted, defendant re-asserts the arguments made to the trial court.  Amici joins in defendant's arguments on appeal.

The court held the discovery dispute was a separate matter than the Wade hearing and defendant was entitled to the discovery to construct a defense and for impeachment purposes.  Discovery into the FRT was necessary because it is a novel and untested technology, and no New Jersey court has addressed the issue.  Moreover, the discovery sought was attainable because:  the State raised no proprietary objections; had already obtained some discovery from the NYPD RTCC; and the items sought regarded defendant's identification and reliability of the identification process.

The court reversed and remanded for entry of an order compelling the State to provide the eleven remaining items of discovery.  The trial court is authorized to enter a protective order, order the in-camera review of the materials received from the State, and hold a Daubert[2] hearing, if necessary.

 

[1]  United States v. Wade, 338 U.S. 218 (1967).

[2]  Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).

STATE OF NEW JERSEY VS. TERRANCE L. JOHNSON A-2035-21

  STATE OF NEW JERSEY VS. TERRANCE L. JOHNSON A-2035-21The court reverses the trial judge's denial of defendant's motion to suppress drugs police found following a motor vehicle stop based on observed traffic violations.  This case presents a novel question concerning the vehicle registration search exception to the warrant requirement.  That exception authorizes police to enter a lawfully stopped vehicle to conduct a pinpointed search for a registration certificate if the motorist is unable or unwilling to produce that document after having been provided a meaningful opportunity to comply with the police request for it.  State v. Terry, 232 N.J. 218, 222 (2018).  In this case, defendant parked and exited the vehicle before police could effectuate the stop.  The court addresses whether police may initiate a search under this "very narrow" exception when the detained motorist is outside the vehicle when police request the registration certificate, and the officer determines it would be unsafe to allow the motorist to reenter the vehicle to retrieve it. 

The court concludes that providing a detained motorist a meaningful opportunity to produce the registration certificate is an indispensable prerequisite to conducting a registration search—one that can only be excused when the motorist is unable or unwilling to comply with the police request for the vehicle credentials.  The court holds a motorist is not "unable" to produce a registration certificate within the meaning of the exception when the sole reason for such inability is a police officer's discretionary decision to prevent reentry.  The court reasons that any contrary interpretation of the registration search exception would undermine, if not eviscerate, the protection of privacy rights afforded by the meaningful-opportunity element by leaving its application to the mercy of unreviewable police discretion. The court declines to create a categorical exemption to the meaningful-opportunity requirement when police determine, in the exercise of their discretion, the motorist should not be allowed to reenter the stopped vehicle for reasons of officer safety. 

Although the police in this case were permitted for their own safety to place defendant in the police car and prevent him from reentering the detained vehicle throughout the investigative detention, that decision had the effect of foreclosing a warrantless registration search.  The court notes that strict enforcement of the meaningful-opportunity prerequisite in these circumstances would not deprive police the ability to investigate whether a car was stolen since they can obtain the information contained in the paper registration certificate by conducting a Motor Vehicle Commission database look-up.    

The court also addresses significant recent revisions to N.J.S.A. 39:3-29—the statute that prescribes a motorist's duty to possess and exhibit a registration certificate to police during a motor vehicle stop and that undergirds the registration search exception to the warrant requirement.  Under the revised statutory framework, motorists are no longer required to possess a paper copy of the vehicle registration certificate.  Rather, they are now permitted to keep and exhibit the registration certificate in either paper or electronic form.

To avoid the futility and needless privacy intrusion of a physical search for a paper document that may not even exist, and that need not be kept in the vehicle in any event, the court holds, prospectively, that police may not enter a detained vehicle under the authority of the registration search exception to search for a paper document without first asking the motorist whether the registration is kept in paper rather electronic form.

State v. Barry Berry

 Judges are encouraged, when practical, to respond “yes” or “no” to unambiguous and specific questions posed by juries during deliberations rather than solely re-read sections of the final jury charge. In general, when a specific request for clarification clearly calls for and is capable of a “yes” or “no” answer, like here, then judges should respond accordingly. Here, the answer to the jury’s question is indisputably “yes,” one can be a “supervisor” but not hold a “high-level” position in a drug trafficking network. Instead of responding “yes” to the question, however, the judge re-read the entire model kingpin charge; opined that those elements, three and four, sounded similar; and may have implicitly suggested that being a “supervisor” is sufficient to establish that a defendant held a “high-level” position within such an organization. The response to the question was an error clearly capable of producing an unjust result.

State v. Jamire D. Williams (A-4/5-22

 State v. Jamire D. Williams; State v. Tyshon Kelly

An MDT query revealing that a vehicle’s owner has a suspended New Jersey driver’s license provides constitutionally valid reasonable suspicion authorizing the officer to stop the vehicle -- unless the officer pursuing the vehicle has a sufficient objective basis to believe that the driver does not resemble the owner. If, upon stopping the vehicle, it becomes reasonably apparent to the officer that the driver does not look like the owner whose license is suspended, the officer must cease the vehicle’s detention and communicate that the motorist is free to drive away without further delay. Based on the specific facts presented here, the initial stop of the vehicle was valid because it was based on reasonable suspicion. However, the detention of defendants and the borrowed car was unconstitutionally prolonged after the officer recognized the driver was not the car’s owner. The officer’s admittedly uncertain ability to tell if he smelled marijuana was inadequate evidence of “plain smell” to justify a continuation of the stop and a search of the vehicle.

State v. Jamire D. Williams (A-4/5-22) (086598) Argued February 28, 2023 -- Decided May 30, 2023

SABATINO, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

These appeals arise out of a police officer’s traffic stop and ensuing search of a passing automobile based upon information from a random query performed on a mobile data terminal (MDT) that revealed the car’s registered owner had a suspended driver’s license.

Defendants Jamire Williams and Tyshon Kelly, two males, had borrowed the car from its female owner. When they passed Police Officer Jeffrey Kless, who had been parked on the side of the road, Kless ran an MDT query on the car. The results revealed a photo of and standard identifying information about the car’s registered owner, and that the registered owner had a suspended license. Kless pulled behind the car and activated his lights; the car pulled over without incident.

Kless approached the passenger side of the vehicle on foot. It was not until he arrived at the passenger-side window that he concluded the driver was not the
female owner. Kless nonetheless requested a driver’s license, registration, and insurance. Believing that he might have smelled marijuana while standing there, despite a stuffy nose, Kless arranged with a backup officer, who had not smelled anything except air fresheners, to have a canine sniff the car.

Prior to the sniff, Kless asked defendants to exit the vehicle. Williams stated that the officers would need consent from the vehicle’s owner to perform the sniff, but an officer on the scene responded, “We don’t need consent.” The dog uncovered the presence of marijuana. An on-the-spot search thereafter revealed a gun under the driver’s seat. Kless patted down defendants and placed them under arrest. Throughout the car search and pat down, Williams repeatedly protested to the officers about the search, including their lack of consent from the car owner. His words of protest were audible on the bodycam recording.

Defendants moved to suppress the evidence found in the car. The trial court denied the motions. After being convicted for weapon possession by a jury, defendants appealed. They challenged the denial of their suppression motions and

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asserted that the jury charge on gun possession was plainly erroneous. In addition, Williams individually claimed he was deprived of a fair trial because the jury was made aware of his protests to the search at the scene. The Appellate Division rejected defendants’ arguments and affirmed their convictions and sentences. The Court granted certification. 252 N.J. 39 (2022); 252 N.J. 59 (2022).

HELD: An MDT query revealing that a vehicle’s owner has a suspended New Jersey driver’s license provides constitutionally valid reasonable suspicion authorizing the officer to stop the vehicle -- unless the officer pursuing the vehicle has a sufficient objective basis to believe that the driver does not resemble the owner. If, upon stopping the vehicle, it becomes reasonably apparent to the officer that the driver does not look like the owner whose license is suspended, the officer must cease the vehicle’s detention and communicate that the motorist is free to drive away without further delay. Based on the specific facts presented here, the initial stop of the vehicle was valid because it was based on reasonable suspicion. However, the detention of defendants and the borrowed car was unconstitutionally prolonged after the officer recognized the driver was not the car’s owner. The officer’s admittedly uncertain ability to tell if he smelled marijuana was inadequate evidence of “plain smell” to justify a continuation of the stop and a search of the vehicle.

1. In Delaware v. Prouse, the United States Supreme Court held that a detention of a motorist to check credentials is unreasonable, except in situations in which there is at least reasonable and articulable suspicion that (1) a motorist is unlicensed or the vehicle is unregistered, or (2) either the vehicle or its occupants are otherwise subject to seizure for violating the law. 440 U.S. 648, 663 (1979). In Kansas v. Glover, the Supreme Court considered whether the Fourth Amendment allows a police officer to “initiat[e] an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license.”140 S. Ct. 1183, 1186 (2020). The Court upheld the stop challenged in that case, pointing out that the deputy, after conducting a random query, “knew that the registered owner of the truck had a revoked license.” Id. at 1188. Based on that information, the deputy “drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.” Ibid. The majority in Glover observed that “[t]he fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate the reasonableness of [the officer’s] inference.” Ibid. The Court found it significant that the Kansas “license-revocation scheme covers drivers who have already demonstrated a disregard for the law or are categorically unfit to drive.” Id. at 1188- 89. The majority, however, took care to “emphasize the narrow scope of [its] holding,” noting that “the presence of additional facts might dispel reasonable suspicion.” Id. at 1191. “For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties,

   

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then the totality of the circumstances would not raise a suspicion that the particular individual being stopped is engaged in wrongdoing.” Ibid. Here, the Court considers for the first time whether the analysis in Glover -- specifically involving driver’s license revocation laws in Kansas -- supports a comparable approach in New Jersey in a setting involving a car owner’s suspended driver’s license.

(pp. 21-29)

2. In State v. Donis, the Court confronted the question of whether “suspicionless access” of information returned from an officer’s random query on an MDT violated the New Jersey Constitution. 157 N.J. 44, 48 (1998). The petitioners in Donis argued that the police should be allowed to conduct MDT queries only when they observe a driver commit a traffic law infraction. Id. at 54. The Court disagreed, holding that it “would render MDTs useless as efficient investigative tools.” Id. at 56. The majority stated in Donis that “[i]f the . . . MDT informed the officer that the car’s owner had an expired or revoked license, the officer would have adequate grounds to stop that vehicle.” Id. at 56-57. Later in the opinion, the majority elaborated further, noting that “the officers also had determined through a ‘match- up’ that the drivers were the registered owners.” Id. at 58. (pp. 29-33)

3. Unlike the Kansas motor vehicle laws at issue in Glover, New Jersey’s regulatory scheme has not markedly distinguished between the severity of offenses that can produce driver’s license suspensions as opposed to revocations. Like Kansas, New Jersey authorizes license suspensions for a variety of offenses and conduct that do not involve driver safety infractions. On the other end of the spectrum, New Jersey drivers may have their licenses suspended -- rather than revoked -- for driving infractions causing death or bodily injury, and other serious categories of driving- related offenses such as DWI. The sharp line in Kansas between revocation-eligible offenses and suspension-eligible offenses is blurred in New Jersey, and the Court therefore declines to rest its constitutional analysis on that basis. Subject to constitutional limitations delineated in the Court’s opinion in this case, a police officer in New Jersey has an equivalent legal basis to stop a vehicle for a suspension-based reason as a revocation-based reason. (pp. 34-37)

4. Data supplied by the Attorney General corroborates to some extent what the Supreme Court majority in Glover described as the “commonsense” nature of an inference that the vehicle owner, despite having lost the privilege to drive, can be reasonably suspected to be the person behind the wheel, as does the rebuttable presumption that the owner of a vehicle was the operator of the vehicle codified in New Jersey’s eluding statute, N.J.S.A. 2C:29-2(b). The constitutional requirement of “reasonable and articulable” suspicion to stop a vehicle, articulated in Prouse, remains the Fourth Amendment standard. As Prouse and its progeny forbid, an officer may not stop a car on a mere hunch that the driver may lack proper credentials. (pp. 37-39)

       

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5. In the absence of information that reasonably indicates to a pursuing officer that the driver is not the vehicle’s owner, the MDT data furnishes reasonable suspicion to authorize the stop. But there is a crucial limitation to that principle: once it becomes reasonably apparent to the officer that the observed driver does not resemble the owner -- either by the photo displayed on the MDT or the age, gender, or description of the owner reported on the license or other visible characteristics -- the pursuit or stop of that driver must cease. Furthermore, an officer making an MDT-based stop who is presented with sufficient objective reason to believe the driver is not the owner may not, without further additional constitutional justification, linger by the vehicle and continue the roadside detention, even to collect or review the driver’s documentation. Rather, the stop must end. If, however, during the brief time in which the officer is lawfully at the side of the car providing the motorist with a brief explanation that the vehicle was inadvertently stopped and permission to leave, that officer observes in plain view a firearm, illegal narcotics, or other apparent contraband within the vehicle, the officer may pursue a further investigation. In that situation, the officer may detain the motorist for an additional reasonable period of time based on reasonable suspicion that another, separate crime is being or has been committed. Such further investigation may include a canine drug sniff, provided the sniff does not consume an unreasonable period of time. (pp. 39-41)

6. The Court is cognizant that it can be impractical or hazardous for an officer to determine whether a driver clearly does not resemble the photo or description of the vehicle owner. The stop may occur at night in a poorly lit area, or the age, gender, height, or weight of the driver may not be readily ascertainable. These are all practical impediments affecting the totality of circumstances, and the reasonableness of an officer’s continued inference that the stopped motorist is indeed the vehicle owner. But there will be other situations in which the mismatch is patently and immediately obvious. In such instances of obvious mismatch, the constitutional grounds to continue the stop evaporate. Lastly, the Court encourages law enforcement officials to make reasonable efforts to attempt visual verification that the driver is the owner if -- and only if -- it is feasible and safe to do so. As a matter of federal and state constitutional law, the Court does not mandate visual confirmation. (pp. 41-43)

7. In the circumstances presented here, Officer Kless had a sufficient reasonable and articulable suspicion to stop the car. However, when Kless walked up to the car’s passenger side and saw the two occupants from a close distance, it was apparent that Williams was not the car’s registered owner. And Kless’s subsequent uncertain perception of marijuana odor failed to rise to the level of reasonable and articulable suspicion of criminality to have authorized the continued detention. The facts here are simply too weak to support a plain-smell justification to prolong this mistaken stop and proceed with a search of the car once it was apparent that the owner was

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not the driver. Although the drug-sniffing dog arrived with another officer only a few minutes later and the search was performed quickly, defendants should have been already permitted to leave at that point. Immediately upon observing the occupants of the vehicle, Kless should have done no more than explain the vehicle had been inadvertently stopped and told defendants they were free to leave. Because the police lacked a reasonable and articulable suspicion to prolong the stop, the fruits of the ensuing car search were therefore unconstitutionally obtained and must be suppressed. And because the judgments of conviction for gun possession were based on evidence of a seized weapon that should have been excluded at trial, the Court vacates defendants’ convictions of those charges and remands for further proceedings. (pp. 44-47)

8. The Court discerns no plain error stemming from the use of the model jury charge on gun possession in this case. The Court refers this subject to the Model Criminal Jury Charges Committee as specified in the Court’s opinion. (pp. 48-49)

9. As to the video footage in which Williams questioned the police’s right to conduct a canine sniff and search of the car without the owner’s permission, the video should have been played without the audio. However, the erroneous admission of that evidence was harmless in light of the proofs as a whole and the context of the trial. It is unclear that a jury would necessarily regard Williams in a negative light for voicing the property interests of the absent car owner. (p. 50)

REVERSED and REMANDED.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, and FASCIALE join in JUDGE SABATINO’s opinion.

5

SUPREME COURT OF NEW JERSEY A-4/5 September Term 2022 086598

State of New Jersey, Plaintiff-Respondent, v.

Jamire D. Williams, a/k/a Jamere Williams, and Jah Jah,

Defendant-Appellant.

State of New Jersey,

Plaintiff-Respondent,

v.

Tyshon Kelly, a/k/a Tyshon Kelley,

Defendant-Appellant.

On certification to the Superior Court, Appellate Division.

Argued Decided February 28, 2023 May 30, 2023

Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for appellant Jamire D. Williams

     

1

(Joseph E. Krakora, Public Defender, attorney; Kevin S. Finckenauer, of counsel and on the briefs).

Andrew I. Haddad, Designated Counsel, admitted pursuant to Rule 1:21-3(c), argued the cause for appellant Tyshon Kelly (Joseph E. Krakora, Public Defender, attorney; Alison Perrone, Deputy Public Defender, and Catherine J. Djang, Designated Counsel, admitted pursuant to Rule 1:21-3(c), on the briefs).

Melinda A. Harrigan, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Raymond S. Santiago, Monmouth County Prosecutor, attorney; Melinda A. Harrigan, of counsel and on the briefs, and Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the brief).

Aidan P. O’Connor argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).

Frank Muroski, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Frank Muroski, of counsel and on the brief).

JUDGE SABATINO (temporarily assigned) delivered the opinion of the Court.

2

These appeals arise out of a police officer’s traffic stop and ensuing search of a passing automobile based upon information from a random query performed on a mobile data terminal (MDT) that revealed the car’s registered owner had a suspended driver’s license. Defendants, two males, had borrowed the car from its female owner. The police officer, who had been parked on the side of the road, was unable to tell whether its driver resembled the license photo and description of the suspended owner. It was not until the officer made the stop and arrived at the passenger-side window that he concluded the driver was not the female owner. The officer nonetheless requested a driver’slicense, registration, and insurance. Believing that he might have smelled marijuana while standing there, despite a stuffy nose, he arranged with a backup officer to have a canine sniff the car. The dog uncovered the presence of marijuana. An on-the-spot search thereafter revealed a gun under the driver’s seat.

Defendants contend the stop of the car and its warrantless search violated the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, and that the fruits of the search must be suppressed. The trial court and the Appellate Division rejected those arguments and affirmed defendants’ convictions.

3

In assessing these issues, we are largely guided by the United States Supreme Court’s decision in Kansas v. Glover, 589 U.S. ___, 140 S. Ct. 1183 (2020). There, the Court ruled that the Fourth Amendment permits an MDT- based stop of a vehicle owned by a driver with a revoked driver’s license if the officer lacked information negating an inference that the owner is the driver. We also consider our pre-Glover opinion in State v. Donis, 157 N.J. 44 (1998), in which we ruled that an officer’s random check of a vehicle’s license plate using an MDT and ensuing stop of that vehicle was consistent with the New Jersey Constitution, subject to certain limitations. In the intervening twenty- five years since Donis, MDT technology has rapidly advanced and now enables an officer to check hundreds of license plates almost instantaneously.

Applying the rationale of Glover to the present situation involving a suspended, rather than a revoked, New Jersey driver’s license, we hold that an MDT query revealing such information provides constitutionally valid reasonable suspicion authorizing the officer to stop the vehicle -- unless the officer pursuing the vehicle has a sufficient objective basis to believe that the driver does not resemble the owner. If, upon stopping the vehicle, it becomes reasonably apparent to the officer that the driver does not look like the owner whose license is suspended, the officer must cease the vehicle’s detention, and communicate that the motorist is free to drive away without further delay.

    

4

Based on the specific facts presented here, we uphold the initial stop of the vehicle because it was based on reasonable suspicion. However, we reverse the judgment of the Appellate Division and hold that the detention of defendants and the borrowed car was unconstitutionally prolonged after the officer recognized the driver was not the car’s owner. That is because the officer’s admittedly uncertain ability to tell if he smelled marijuana was inadequate evidence of “plain smell” to justify a continuation of the stop and a search of the vehicle.

For the sake of completeness, we also briefly address jury charge and evidentiary issues raised, but do not reverse defendants’ convictions on those independent grounds.

I. A.

While on routine traffic patrol at about 7:21 p.m. on December 21, 2016, Borough of Deal Police Officer Jeffrey Kless observed a Nissan being driven southbound into Deal from Long Branch. When the Nissan passed Kless, he performed a random query on his MDT1 of its registration. The MDT query returned the vehicle’s make, model, year, and vehicle identification number.

1 An MDT “consists of a screen and keypad that are linked to the computerized databases of the New Jersey” Motor Vehicle Commission (MVC). Donis, 157 N.J. at 46. “Because the MDT is an inquiry-only device

 

5

According to Kless’s testimony at the suppression hearing, typically, if there are any issues with the vehicle’s registration or its registered owner’s driver’s license, the MDT program automatically returns a full query. That full query displays more information about the registered owner, including the person’s name, address, date of birth, social security number, and other information contained on a driver’s license. The display includes a photo of the registered owner as well as the owner’s gender, as self-reported to the MVC as part of the driver’s license application.2

and has no computing power of its own, a police officer is unable to add, change, or delete any information displayed on the pre-formatted screen. Information may be retrieved through the MDT by entering a license plate number.” Ibid. The technology has improved over the years. MDTs can now be used in conjunction with Automated License Plate Recognition (ALPR) systems, which are capable of capturing license plate data without the need for a police officer to enter an individual plate number into the MDT. David J. Roberts & Meghann Casanova, Automated License Plate Recognition (ALPR) Use by Law Enforcement: Policy and Operational Guide 9 (Aug. 2012) (ALPR Operational Guide), available at https://www.theiacp.org/sites/default/ files/IACP_ALPR_Policy_Operational_Guidance.pdf. According to law enforcement data, as of 2012, ALPRs could read up to 1,800 license plates per minute. Ibid. An appendix to that study reported that ALPRs used in New York can capture data for over 3,000 plates per minute. Id. at app. A (citing N.Y. State Dep’t of Crim. Just. Servs., License Plate Reader Suggested Guidelines 11 (Jan. 2011)).

2 Because random MDT queries are stored for only sixty days unless purposefully kept by law enforcement, there is no record of exactly how many such queries Kless performed during his shift. However, he estimated that he performed between ten and fifteen queries before observing the Nissan.

    

6

When Kless conducted the query about the Nissan, the MDT revealed that the registered owner had a suspended license. The MDT displayed the owner’s photo and other identifying information on Kless’s screen. It further indicated that the registered owner was female and about 5 feet, 7 inches tall and weighed approximately 180 to 200 pounds.

Upon receiving the data from the query, Kless drove ahead and “attempted to close the gap” between his patrol car and the Nissan. According to Kless, he was not able to identify who was driving the Nissan because “[i]t was dark out, and the vehicle was traveling away from [his] location.”

After maneuvering around several cars on the road to get behind the Nissan, Kless activated his overhead emergency lights to effectuate a traffic stop. The Nissan pulled over without incident.

Kless then approached the Nissan’s passenger side on foot. Once beside the car, Kless immediately observed two occupants through an already-open window. The driver, defendant Jamire Williams, spontaneously apologized to Kless, stating that he thought he could make it through the intersection before the traffic signal turned red.3 Defendant Tyshon Kelly was seated in the front

3 The State concedes that the only valid reason for the stop was the MDT random query return indicating that the Nissan’s registered owner had a suspended license. Kless testified, and the footage from the mobile video recorder in his patrol car showed, that no red light had been run at the intersection.

7

passenger’s seat. Both Williams and Kelly are males. The motion record reflects that Williams was 5 feet, 4 inches tall and weighed about 120 pounds.

Kless introduced himself and requested Williams’s driver’s license, car registration, and insurance card.4 Williams produced his valid driver’s license and the Nissan’s registration documents, but he was unable to locate proof of insurance. Kelly called the vehicle’s registered owner to tell her that he and Williams had been pulled over and to ask where she kept the documentation inside the car.

Defendants continued searching for the insurance card while on the phone, but to no avail. After some time, the owner offered to come to the roadside location to assist in the search. Kless admonished, however, that she could not drive there because her license was suspended.

At that point, Kless told Williams not to worry about finding the insurance card and that he “[didn’t] really care if you can’t find it.” Kless advised defendants to “just hang tight for a second,” and he walked back to his patrol vehicle. That initial phase of the traffic stop consumed nearly three minutes.

4 It appears on the body-worn camera (bodycam) footage that both Williams and Kelly had been looking for documentation in the glove compartment before Kless reached the window.

8

About three minutes after that, while in his patrol car running a check on Williams’s license, Kless answered a call from a fellow Deal police officer, Dan Lokerson, who was apparently in the area of the stop. Kless asked Lokerson, “Are you around or are you gone?” and “Do you want to roll over my way?”

Pertinent to a key issue before us, Kless then stated to Lokerson, as recorded on Kless’s bodycam, “I can’t tell whether I got smell or not, I just want a second opinion.” Kless stated at the time (and later reiterated at the suppression hearing) that he had been sick that night and his congestion prevented him from clearly detecting the odor of marijuana.5 Kless also contacted headquarters to request a criminal history and warrant check of Williams.

About two minutes after hanging up with Kless -- by this point eight minutes after the traffic stop began and five minutes after Kless had initially returned to his patrol car -- Lokerson arrived. He quickly consulted with Kless and approached the Nissan while Kless remained in his own patrol car.

Lokerson spoke with Williams and Kelly, examining an insurance card that defendants had managed to find in the Nissan. Because the card was

5 On the bodycam recording, Kless periodically can be heard sniffling, at one point remarking that he was “half clogged up.”

9

expired, the car’s insurance status remained unresolved. That interaction lasted for about two-and-one-half minutes.

Kless then got out of his police car and conferred with Lokerson. Lokerson told Kless that he had seen a spoon with white residue on it in the center console of the Nissan. Kless requested that Lokerson use the drug- sniffing dog already present in Lokerson’s vehicle to conduct a sniff of the Nissan’s exterior. Lokerson agreed even though he told Kless that he personally had not smelled anything except air fresheners.

At that point, Kless asked defendants to “pop out for a sec[ond]” from the Nissan, which they did. Williams asked Kless, “What happened, sir?” Kless replied that he had smelled marijuana emanating from the car “when [he] was out talking to [defendants] before.” Kless told defendants that the dogwould be doing a “quick sniff around the car.” Williams responded that the officers would need consent from the vehicle’s owner. Another officer who had reached the scene responded, “We don’t need consent.”

The officers directed defendants away from the Nissan and the dog, causing defendants to stand on the adjacent sidewalk. Kless then asked Kelly for his identification. Kless told defendants that he had stopped the car not only because it seemingly had run a red light, but also because the owner’slicense was suspended and Kless did not know who was driving.

10

The dog performed a sniff and indicated the presence of drugs in the vehicle. The officers then searched the car’s interior, assisted by the dog.

After about five minutes, Lokerson told Kless he had found a small bag with “a little” marijuana under the passenger’s seat. Lokerson also explained to Kless that he was not done searching the car. Kless responded that he would pat defendants down, and he proceeded to do so.

Throughout the car search and the subsequent pat down, Williams repeatedly protested to the officers about the search, including their lack of consent from the car owner. His words of protest were audible on the bodycam recording.

After the pat down, Kless placed defendants under arrest. Kless attempted to place them in handcuffs, prompting Williams to run. Kelly remained at the scene.

Several officers on the scene chased Williams, aided by the dog. The dog caught Williams in a nearby stream. The officers then secured Williams in handcuffs and brought him back to the roadside.

The officers asked Williams about what else was in the car and questioned why he would run just because they found “a bag of weed.” Williams noticed that the officers were continuing to search the car and asked for an explanation. He reiterated that the search required consent and insisted

11

he be allowed to watch it. In response, Kless again told Williams that the car smelled like marijuana, that the canine indication allowed the officers to continue to search the car’s interior, and that they already had found marijuana in the car.

Kless and another patrolman brought defendants back to the Deal police headquarters for processing. Lokerson remained at the scene. The continued search of the car revealed a handgun loaded with hollow-point bullets under the driver’s seat.

Based on this evidence, Williams and Kelly were both charged with second-degree unlawful possession of a weapon (the handgun) and fourth- degree possession of a prohibited weapon or device (the hollow-point bullets). Williams was additionally charged with fourth-degree resisting arrest by flight.

B.
Before trial, Kelly moved to suppress the evidence found in the car;

Williams joined in the motion. Defendants argued that Kless did not have reasonable suspicion to pull them over and that the evidence seized as a result of the vehicle stop must be suppressed.

The trial court held a one-day suppression hearing in August 2018, at which Kless and Lokerson testified. Defendants did not testify or present any

12

witnesses. During the hearing, the footage from the bodycams of Kless and Lokerson was played for the judge and marked into evidence.

Kless testified that he was first able to see who was actually in the vehicle “[o]nce [he] was at the window, on the passenger’s side of the vehicle.” Kless acknowledged that he was aware that the grounds for an MDT-based stop of the suspended owner no longer existed once he got to the side of the vehicle and could see the owner was not the driver, but that he proceeded anyway. Despite his uncertain comments at the scene, Kless told the court that he was able to detect the odor of marijuana while talking to defendants at the window and collecting their documentation.

Lokerson testified that he smelled no marijuana but that he “believed it’s suspicious a lot of times when there [are] multiple air freshener[s], it is used to mask narcotic odor.” Lokerson added that he had seen a spoon in the car but did not seize it “[b]ecause after [the officers] searched the vehicle and [he] was able to inspect it more closely, [he] was able to identify [a benign] substance, possibly of . . . a food substance.” Lokerson recalled that when he flipped it over “there w[ere] no burn marks on the spoon” and it did not resemble what he had seen in the past of spoons associated with heroin use.

The motion judge concluded that case law, particularly Donis, did not support defendants’ contention that an officer must confirm the driver’s

13

identity before effectuating a stop of a vehicle when an MDT query indicates that the owner has a suspended license. The judge also found that Kless did not have the opportunity to verify the identities of the Nissan occupants before the stop. In addition, the judge ruled the officers were permitted to initiate a canine sniff under State v. Dunbar, 229 N.J. 521 (2017), because the dog sniff did not unduly prolong the stop. Further, the judge reasoned that the positive indication from the canine sniff created sufficient probable cause to search the car’s interior. The judge accordingly denied the suppression motions.

Defendants were tried before a jury and a different judge over several days in March 2019. The jury found both defendants guilty of second-degree unlawful possession of the handgun, but not of fourth-degree possession of the hollow-point bullets. The jury also found Williams guilty of fourth-degree resisting arrest. Defendants moved for a new trial, which the court denied.

At sentencing, the State successfully moved for discretionary extended terms for both defendants. Williams was sentenced to a fifteen-year term for the weapons offense and a concurrent eighteen-month term for resisting arrest, while Kelly was sentenced to a fifteen-year term for his own weapons conviction. Both defendants received a seven-and-one-half-year parole disqualifier.

14

C.
Defendants appealed their convictions and sentences. They principally

argued that the trial court erred in denying their motions to suppress the evidence obtained from the stop and search of the Nissan. They also raised several unrelated issues, only two of which are before us now. Specifically, both defendants asserted that the jury charge on gun possession was plainly erroneous. In addition, Williams individually claimed he was deprived of a fair trial because the jury was made aware of his protests to the search at the scene.

The Appellate Division, in a consolidated opinion, rejected defendants’ arguments and affirmed their convictions and sentences. The appeals court ruled that the motion judge correctly found that New Jersey precedent allows officers to pull over drivers upon such random MDT license plate checks and “does not require officers to verify the driver’s identity before effectuating” the stop. The appellate court additionally stated that, “[i]n any event, the motion judge found Kless lacked the opportunity to ascertain the owner’s identity prior to stopping the Nissan in view of the circumstances presented.” Consequently, the Appellate Division affirmed the validity of the motor vehicle stop, “substantially for the reasons stated by the motion judge.” The appeals court declined to address defendants’ contentions that the stop was

15

unconstitutionally prolonged, ruling that defendants had not preserved those contentions for appellate review.

The Appellate Division decided several other issues.6 Relevant here, defendants argued that the model jury instruction the court gave on the weapons possession counts misstated the burden of proof and contradicted the reasonable doubt standard by permitting an inference of possession when possession is “more probable than not.” The appellate court held that the instruction, which was not challenged by trial counsel, was not plain error because the jury was never “bound to find the inference or to view it favorably” and because the instructions, read as a whole, informed the jury of the proper burden of proof.

In addition, the Appellate Division concluded the statements Williams made at the scene about not consenting to the search were voluntary and not a violation of the Miranda7 doctrine. The appellate court held that the video footage should have been played without the audio. However, the court further held that any error in admitting them was harmless because the prosecutor did not emphasize in summation Williams’s invocation of any

6 Defendants both raised an evidentiary issue and an issue related to the State’s obligation during discovery. Defendants also challenged their respective sentences. Those issues are not before us.

7 Miranda v. Arizona, 384 U.S. 436 (1966). 16

  

Fourth Amendment rights and focused more on Williams’s flight from the scene of the traffic stop as indicative of a consciousness of guilt. The court added that, even if the audio track of the recording had been muted, the State would have been able to “advance exactly the same argument without any reference to Williams’s invocation of his rights.”

Defendants moved for reconsideration. Among other things, they asserted that the appeals court should have expressly addressed the merits of the prolongation issue. The Appellate Division denied the motion.

D.
Defendants petitioned this Court for certification, each arguing that the

MDT-based stop was improper because Kless lacked reasonable suspicion that the Nissan driver was the car’s owner whose license was suspended. They further argued the stop was unconstitutionally prolonged and not justified by Kless’s admittedly uncertain detection of the smell of marijuana. Both petitions also contended that the jury charge on gun possession misstated the State’s burden of proof and that the flaw comprised harmful error.

Williams included in his petition his contention that the video-recorded statement asserting his rights during the car search was unfairly prejudicial and should not have been admitted before the jury.

17

We granted certification on all these discrete issues, leaving undisturbed the rulings of the trial court and Appellate Division on other issues not covered by the petitions. See 252 N.J. 39 (2022); 252 N.J. 59 (2022). We also granted motions by the Attorney General, the Association of Criminal Defense Lawyers of New Jersey (ACDL), and the American Civil Liberties Union of New Jersey (ACLU) to appear as amici curiae.

II.
In their submissions to this Court, defendants assert that the stop of the

Nissan was unconstitutional because Kless did not verify beforehand whether the car’s driver looked like the photo of the license-suspended owner on the MDT display. Defendants argue that this Court should construe the Fourth Amendment and the New Jersey Constitution to require such a pre-stop visual confirmation. They rely on passages within the United States Supreme Court’s opinions in Glover that distinguish between revoked and suspended licenses and require individualized articulations of reasonable suspicion. Along with the ACLU and ACDL, defendants catalog the many non-driving-related reasons for which a car owner could have a license suspended, in an effort to show the unreasonableness of a traffic stop on that basis alone.

Defendants further contend the Appellate Division erred in ruling they procedurally waived their related argument that the stop was unduly prolonged

18

after Kless visually confirmed that the registered owner was not driving, dispelling any reasonable suspicion for the stop. As to the merits of that argument, defendants assert that even if, for the sake of discussion, the initial stop was lawful, Kless had no right to remain standing next to the car once it became, as he admitted, immediately clear that the driver of the car did not look like the owner. They submit that when it becomes reasonably clear to an officer that the driver is not the owner, the officer must simply apologize briefly for the inconvenience and promptly allow the driver to leave.

Based on such proposed legal principles, defendants argue that the stop here should have ended once Kless arrived at the passenger window. They contend that the “plain smell” doctrine did not justify their continued detention because Kless told his fellow officer that he had a cold and was uncertain whether he had smelled marijuana, and the police therefore lacked reasonable suspicion of criminal activity. The ACDL and ACLU join in and amplify those arguments.

Conversely, the State maintains the Appellate Division correctly analyzed the stop and prolongation issues. As to the stop, the State argues that the United States Supreme Court’s ruling in Glover does not require visual confirmation that the driver of the car is the owner whose license is either revoked or suspended before effectuating an MDT-based stop. In addition, the

19

State contends that Donis and its progeny in New Jersey have not required visual confirmation as a predicate to the stop, and that we should reject defendants’ request here to prescribe a more burdensome rule of law.

Further, the State argues the stop was not unduly prolonged because even when Kless realized the men did not look like the Nissan’s owner, he was authorized to remain by the car and complete the process of making the “ordinary inquiries” incident to a traffic stop, namely obtaining valid motor vehicle documents from the occupants. The State further contends that Kless’s testimony sufficiently evidenced a “plain smell” of marijuana and provided reasonable suspicion to continue the stop and conduct a drug sniff and search of the car’s interior.

The Attorney General joins in the State’s position concerning the validity of the initial stop but takes no position on the “plain smell” and prolongation issues.

As for the other issues before us, both defendants repeat their argument that the jury charge on gun possession, despite it tracking the model charge, was flawed and comprised plain error. The State opposes that argument, endorsing the Appellate Division’s analysis. None of the amici address the charge issue.

20

Lastly, Williams alone contends the Appellate Division erred in denying him relief because of the trial court’s improper admission of evidence of his protests at the scene of the stop. The State contends no error occurred and that, in any event, as the Appellate Division found, any error would have been harmless. The amici do not address this issue, either.

III. A.

We begin with an analysis of the search-and-seizure issues. Our discussion is guided by several fundamental and well-established principles of constitutional law.

1.
Under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, citizens have the right to

be protected from unreasonable searches and seizures by law enforcement officials. A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement. State v. Witt, 223 N.J. 409, 422 (2015).

In its landmark opinion concerning motor vehicle stops in Delaware v. Prouse, the United States Supreme Court observed that the reasonableness of a seizure is generally determined “by balancing its intrusion on the individual’s

  

21

Fourth Amendment interests against its promotion of legitimate governmental interests.” 440 U.S. 648, 654 (1979). The Supreme Court recognized in Prouse that “[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation.” Id. at 662. The Court underscored that

[a]utomobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel.

[Ibid.]
Because of those motorist expectations, the Prouse Court reasoned that,

“[w]ere the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed.” Id. at 662-63.

New Jersey case law has similarly recognized the importance of the liberty and privacy interests of the motoring public under our State Constitution. See, e.g., Witt, 223 N.J. at 446-49 (adopting an “unforeseeability and spontaneity” predicate for reliance upon the automobile exception to the

warrant requirement as striking the proper balance of reasonableness in light of 22

  

motorists’ privacy and liberty interests); see also State v. Smart, ___ N.J. ___, ___ (2023) (slip op. at 3) (applying that test to invalidate a warrantless automobile search).

The appeal in Prouse specifically involved a defendant’s Fourth Amendment challenge to a police officer’s random, discretionary stop of his automobile. Prouse, 440 U.S. at 650-51. The officer had not observed any traffic or equipment violations, nor any suspicious activity. Id. at 650. He made the stop only to check the motorist’s driver’s license and the car’s registration. Ibid. The officer was not acting pursuant to any police standards, guidelines, or procedures. Ibid. While walking towards the stopped car, the officer smelled marijuana smoke. Ibid. He spotted marijuana on the car floor, which he seized without a warrant. Ibid.

The Supreme Court invalidated the stop and the ensuing search in Prouse under the Fourth Amendment. Id. at 663. The Court held that such a detention of a motorist to check credentials is unreasonable, except in situations in which there is at least reasonable and articulable suspicion that (1) a motorist is unlicensed or the vehicle is unregistered, or (2) either the vehicle or its occupants are otherwise subject to seizure for violating the law. Ibid.

The Court recognized the State’s legitimate interest in ensuring the safety of its roadways. Id. at 658-59. In particular, it validated the role of law

    

23

enforcement “in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed.” Id. at 658. “Unquestionably, these provisions, properlyadministered, are essential elements in a highway safety program.” Ibid.

That said, the Court in Prouse weighed those state interests against “the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents.” Id. at 657. As for the physical element, the Court noted the stop’s interference with a motorist’s freedom of movement, its inconvenience, and the consumption of time. Ibid. As for the psychological impact, the Court recognized that a police officer’s command to pull over a vehicle to the side of the road can be “a possibly unsettling show of authority,” one which “may create substantial anxiety.” Ibid.

Upon weighing those competing interests and concerns, the Supreme Court adopted in Prouse a requirement of reasonable suspicion to justify a discretionary vehicular stop under the Fourth Amendment. Id. at 663.8

8 As an important caveat not factually pertinent here, the Court clarified that states are not precluded from “developing methods for spot checks that involve less intrusion or that do not involve [an officer’s] unconstrained exercise of discretion.” Prouse, 440 U.S. at 663.

   

24

2.
The Supreme Court revisited those principles in 2020 when it took up

the question in Kansas v. Glover of whether the Fourth Amendment allows a police officer to “initiat[e] an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license.” 140 S. Ct. at 1186. According to the stipulated facts in that case, a deputy sheriff ran a random computerized license plate check on a passing truck. Id. at 1187. The check revealed that the truck’s registered owner, Glover, had a revoked Kansas driver’s license. Ibid. The deputy had not observed the truck driver commit any traffic infractions. Ibid. Nor did the deputy attempt to identify the driver or ascertain whether he looked like the truck’s owner before stopping the vehicle. Ibid. As it turned out, the driver was indeed the truck’s owner, and he was charged with driving illegally with a revoked license. Ibid.

The Kansas Supreme Court held that the defendant-motorist’s motion to suppress evidence seized from the truck was properly granted, as, under the Fourth Amendment, the officer “did not have reasonable suspicion” to stop the truck. Ibid. The state high court found that the deputy’s “inference that Glover was behind the wheel amounted to ‘only a hunch’ that Glover was engaging in criminal activity.” Ibid.

25

In a majority decision joined by eight Justices (two of them concurring), the United States Supreme Court reversed the Kansas court and upheld the stop of the truck. Ibid. The opinion of the Court pointed out that the deputy, after conducting a random query, “knew that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle.” Id. at 1188. Based on that information, the deputy “drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.” Ibid. (emphasis added).

Of particular relevance here, the majority in Glover observed that “[t]he fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate the reasonableness of [the officer’s] inference.” Ibid. That Glover’s license had been revoked, the majority further noted, “d[id] not render [the officer’s] inference unreasonable” because national empirical evidence supports the contention that “[d]rivers with revoked licenses frequently continue to drive.” Ibid.

The Court found it significant that the Kansas “license-revocation scheme covers drivers who have already demonstrated a disregard for the law or are categorically unfit to drive.” Id. at 1188-89. Given those features of Kansas’ motor vehicle laws, “[t]he concerns motivating the State’s various grounds for revocation lend further credence to the inference that a registered

  

26

owner with a revoked Kansas driver’s license might be the one driving the vehicle.” Id. at 1189.

The Glover majority concluded that “[u]nder the totality of the circumstances . . . , [the deputy] drew an entirely reasonable inference that Glover was driving while his license was revoked.” Id. at 1191. The majority, however, took care to “emphasize the narrow scope of [its] holding,” noting that “the presence of additional facts might dispel reasonable suspicion.” Ibid. “For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not raise a suspicion that the particular individual being stopped is engaged in wrongdoing.” Ibid. (emphases added) (quotation omitted).

Justice Kagan wrote a concurring opinion in Glover, which Justice Ginsburg joined. Justice Kagan considered it “crucial” to the analysis in Glover that the officer knew “one more thing about the vehicle’s registered owner, and it related to his proclivity for breaking driving laws.” 140 S. Ct. at 1192 (Kagan, J., concurring). Specifically, the officer learned from a state database that the truck owner’s license had been revoked rather than suspended. Ibid. Moreover, “Kansas almost never revokes a license except for serious or repeated driving offenses.” Ibid. Thus, “a person with a

     

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revoked license has already shown a willingness to flout driving restrictions.” Ibid.

Based on that reasoning, Justice Kagan explained she “would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws,” such as “if Kansas had suspended rather than revoked Glover’s license.” Ibid. That analytic distinction between suspension and revocation was based on the fact that “Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.” Ibid. In that respect, the Justice briefly cited New Jersey’s statute related to suspending driver’s licenses for failure to appear or pay for a parking violation. Ibid. (citing N.J.S.A. 39:4-139.10 (2019)).

Justice Kagan also noted that “several studies have found that most license suspensions do not relate to driving at all; what they most relate to is being poor.” Ibid. In a situation in which a database query returned information that a vehicle owner’s license was only suspended, Justice Kagan opined that “the good reason the Court gives for thinking that someone with a revoked license will keep driving -- that he has a history of disregarding driving rules -- would no longer apply. And without that, the case for assuming that an unlicensed driver is at the wheel is hardly self-evident.” Ibid.

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In the lone dissent in Glover, Justice Sotomayor expressed concern that “[t]he consequence of the majority’s approach is to absolve officers from any responsibility to investigate the identity of a driver when feasible,” which she noted “officers ought to do -- and are more than capable of doing.” 140 S. Ct. at 1196 (Sotomayor, J., dissenting). Expanding upon a theme from the concurrence, Justice Sotomayor emphasized the differences between suspended and revoked licenses from one jurisdiction to another. Id. at 1198. She noted that “[w]hether the majority’s ‘common sense’ assumptions apply outside of Kansas is thus open to challenge.” Ibid.

Before today, this Court has not addressed Glover. In particular, we have not addressed whether the Supreme Court majority’s analysis in that case -- specifically involving driver’s license revocation laws in Kansas -- supports a comparable approach in New Jersey in a setting involving, as here, a carowner’s suspended driver’s license.

3.
Two decades before the 2020 decision in Glover, we considered in State

v. Donis a related issue concerning the propriety of traffic officers using MDTs to perform computerized checks of the licenses and registrations associated with passing vehicles. We now turn to Donis, which has been a major focus of the briefs submitted to us.

    

29

In the consolidated appeals in Donis, this Court confronted the question of whether “suspicionless access” of information returned from an officer’s random query on an MDT violated Article I, Paragraph 7 of the New Jersey Constitution. 157 N.J. at 48. In each of those two cases, police officers had “randomly entered the license plate numbers of petitioners’ cars and accessed their [Division of Motor Vehicles] records, discovering that their driving privileges had been suspended.” Ibid.

In petitioner Mario Donis’s case, an officer “observed that the driver of the [car] was a male” who, “due to his low position in the driver’s seat[,] was relatively short in stature.” Ibid. Thereafter, the MDT query reported that the vehicle’s registered owner was a male who was 5 feet, 8 inches tall. Id. at 48- 49. Based on the officer’s observations of the driver and the results of the MDT inquiry, he stopped the car. Id. at 49. During the stop, Donis confirmed to the officer that he was the vehicle’s owner. Ibid. Donis was then cited for driving with a suspended license and for driving without liability insurance. Ibid.

In the companion case involving petitioner Heidi Gordon, a police officer conducted a random MDT query on Gordon’s car while it was stopped at a red light, which showed “that the owner of the car was a . . . forty-eight year old woman whose driver’s license had been suspended.” Id. at 49-50.

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“Because his headlights were shining into [the] car, [the officer] testified that he could determine that the driver and sole occupant of the car was [likewise] an ‘older female.’” Id. at 50. Again, based on the officer’s observations and the MDT results, he stopped the car. Ibid. The officer confirmed that the driver was also the registered owner, Gordon, whose information the query had returned. Ibid. He consequently issued her tickets for driving with a suspended license and driving without liability insurance. Ibid.

Both Donis and Gordon challenged the stops of their vehicles as unconstitutional under the New Jersey Constitution. Id. at 50-51. The Appellate Division upheld the stops, holding that they “did not constitute unreasonable seizures because the officers reasonably believed there was a ‘general match’ between the appearance of the drivers and the MDT’s descriptions of [them].” Ibid.

This Court in Donis unanimously affirmed the judgments for the State in both cases.9 The majority preliminarily noted the State’s “vital and compelling interest in maintaining highway safety by ensuring that only qualified drivers operate motor vehicles and that motor vehicles are in a safe condition.” Id. at

9 Justice Stein concurred in the result, affirming the convictions, but objected to part of the majority’s rationale that law enforcement could randomly obtain access to and use “personal information” of motorists under N.J.S.A. 39:2-3.3 from an MDT without reasonable suspicion or at least some level of suspicion. Donis, 157 N.J. at 62-64 (Stein, J., concurring).

  

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51 (quoting State v. Kadelak, 280 N.J. Super. 349, 360 (App. Div. 1995)). To that end, the majority observed, our statutes have authorized the collection of the data displayed on the MDT for the purpose of “assist[ing] law enforcement officers in locating the owners of stolen cars and to provide [law enforcement officers] with more complete motorist information.” Id. at 52 (second alteration in original) (quoting Governor’s Reconsideration and Recommendation Statement on Assembly Comm. Substitute for A. 1845 and A. 2448 (1989), reprinted in N.J.S.A. 39:3-4).

The petitioners in Donis argued that the police should be allowed to conduct MDT queries only when they observe a driver commit a traffic law infraction. Id. at 54. This Court disagreed with that proposed restrictive approach, holding that it “would render MDTs useless as efficient investigative tools.” Id. at 56. In that regard, the majority observed that “spot check[s] of a license and registration status contribute[] to public safety.” Ibid.

The majority stated in Donis that “[i]f the . . . MDT informed the officer that the car’s owner had an expired or revoked license, the officer would have adequate grounds to stop that vehicle.” Id. at 56-57. However, later in the opinion, the majority elaborated further:

[I]n both of these appeals, petitioners’ convictions were based on license plate identification, and that additional

    

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evidence linked each petitioner to the offense. The police officers in their initial use of MDT learned that the vehicles’ owners had suspended licenses. That information itself gave rise to the reasonable suspicion that the vehicle was driven in violation of the motor vehicle laws and was in itself sufficient to justify a stop. However, in addition to that information, the officers also had determined through a “match-up” that the drivers were the registered owners. On the descriptive information provided by the MDT and the “general match” of petitioners, the officers therefore had reasonable suspicion to believe that the drivers were violating the law.

[Id. at 58 (emphases added).]
The parties and amici in the present appeals disagree over the

precedential import of the above-quoted passage from Donis. Defendants, the ACDL, and the ACLU maintain that the “match up” language is part of the holding of the case. The State and the Attorney General, on the other hand, contend that the “match up” language is mere dicta and instead rely upon the Court’s statement that the MDT license suspension output was “in itself sufficient to justify a stop.”

We need not settle that debate about Donis here. Instead, we choose to analyze the legal questions before us on their own merits, informed by the intervening guidance of the United States Supreme Court in Glover, which was issued two years after the trial court proceedings in this case.

      

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B. 1.

Unlike the Kansas motor vehicle laws at issue in Glover, New Jersey’s regulatory scheme has not markedly distinguished between the severity of offenses that can produce driver’s license suspensions as opposed to revocations. Although they were amended a few years ago, see L. 2019, c. 276, our motor vehicle statutes have traditionally authorized courts to impose the sanctions of suspension and revocation somewhat interchangeably.10

In New Jersey, the authority to suspend or, alternatively, revoke a driver’s license generally derives from a common statutory source, N.J.S.A. 39:5-30(a). That provision states, in pertinent part, that “every privilege to drive motor vehicles . . . may be suspended or revoked . . . for a violation of any of the provisions of this Title or on any other reasonable grounds.” Ibid. (emphasis added).

The statute permits license suspension or revocation for a variety of serious driving-related offenses, including those that cause death or serious

10 The 2019 amendments were entitled “Driver’s Licenses -- Suspension or Revocation.” See L. 2019, c. 276. The amendments require more individualized consideration of an offender’s circumstances before a license can be suspended or revoked, at various points adding that the court or MVC should consider “the circumstances of the offense [or violation], whether the suspension of the person’s driver’s license will result in extreme hardship and alternative means of transportation are not readily available.” Ibid.

  

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injury. Subsection (b) authorizes the director of the MVC to “issue a notice of proposed final suspension or revocation of any license certificate” for certain driving violations which have “resulted in the death of another.” N.J.S.A. 39:5-30(b) (emphasis added). Moreover, subsection (e) permits the MVC director to “immediately issue a preliminary suspension of any license certificate” upon notice of certain violations resulting in the death or serious bodily injury of another. N.J.S.A. 39:5-30(e) (emphasis added). Our statutes also permit courts to forfeit or suspend, rather than revoke, the licenses of motorists who have committed certain drunk driving (DWI) offenses. See N.J.S.A. 39:4-50; see also, e.g., N.J.S.A. 39:4-50.17(a)(2) (referring interchangeably to a “period of license forfeiture” and a “period of license suspension” in providing for the ignition interlock device as an additional penalty).

Like Kansas, New Jersey authorizes license suspensions to be imposed for a variety of offenses and conduct that do not involve driver safety infractions. See, e.g., N.J.S.A. 2A:17-56.41(a) (authorizing the suspension of a driver’s license of a person who had failed to pay court-ordered child support); N.J.S.A. 2C:46-2 (authorizing the suspension of a driver’s license of a person who had defaulted on court payments); N.J.S.A. 39:4-139.10 (authorizing the suspension of driving privileges for failure to pay outstanding

   

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parking fines or appear for a parking-related municipal court summons).11 On the other end of the spectrum, New Jersey drivers may also have their licenses suspended -- rather than revoked -- for driving infractions causing death or bodily injury, and other serious categories of driving-related offenses such as DWI.

As the above discussion shows, the sharp line in Kansas between revocation-eligible offenses and suspension-eligible offenses is blurred in our state. We therefore decline to rest our constitutional analysis on that basis.

11 Supplemental data supplied to us by the Attorney General at our request after oral argument shows that, as of 2010, over one million New Jersey drivers had their licenses suspended. Yusuf Mehta, et al., Restricted-Use Licenses for Suspended NJ Drivers 19 (2014), https://www.nj.gov/ transportation/business/research/reports/FHWA-NJ-2015-006.pdf. We are mindful the Legislature amended the statutory scheme in 2019, effective as of January 2021, to reduce the categories of offenses and conduct that can produce license suspensions. See L. 2019, c. 276. We are also mindful the Judiciary, by a series of administrative orders between 2019 and 2022, purged over a million older license suspensions and minor municipal court dispositions that were needlessly still on the books. See Sup. Ct. of N.J., Dismissal of Approximately 266,000 Municipal Cases More Than 24 Years Old; Recission of Driver’s License Suspensions and Recall of Arrest Warrants (Dec. 12, 2022 Order); Sup. Ct. of N.J., Dismissal of Nearly 300,000 Municipal Cases More than Twenty-Seven Years Old and Recall of Driver’s License Suspensions (May 21, 2021 Order); Sup. Ct. of N.J., Dismissal of Certain Municipal Court Cases More than Fifteen (15) Years Old (Jan. 17, 2019 Order) (addressing 787,764 unresolved complaints on minor municipal court matters from before 2003); Sup. Ct. of N.J., Dismissal of Certain Minor Municipal Court Matters Older Than 2003 -- Supplemental Order for Bergen County Matters (Sept. 24, 2019 Order) (addressing 16,777 unresolved minor municipal matters in Bergen County).

       

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Subject to constitutional limitations we will delineate herein, a police officer in New Jersey has an equivalent legal basis to stop a vehicle for a suspension- based reason as a revocation-based reason.

2.
A more significant empirical question implicated by Glover is how

frequently a vehicle owner who has a suspended or revoked license happens to be the person driving that vehicle. The partial data supplied to us by the Attorney General compiling stops over a ten-year period by State Police officers (which does not include stops by county or local police) reflects that the stopped motorist was issued a ticket for driving with a suspended license or suspended registration about 72 percent of the time.12 Although that percentage includes an unquantified number of registration violations and is not recent, it corroborates to some extent what the Supreme Court majority in Glover described as the “commonsense” nature of an inference that the vehicle

12 The data include stops made by State Police of all motorists, not just stops based on MDT “hits.” The data aggregates stops for suspected violations of N.J.S.A. 39:4-30, which covers both violations for driving with suspended or revoked licenses and suspended or revoked vehicle registrations, with no way to distinguish between the offenses for which a summons was issued. We refer to these figures only as a rough estimation of the frequency with which an MDT-based stop might lead to a summons issued to the registered owner who was driving the vehicle. We also recognize that, inversely, the partial statistics suggest that nearly 30 percent of the motorists stopped by State Police for a suspected N.J.S.A. 39:4-30 violation are seized without being issued a summons.

  

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owner, despite having lost the privilege to drive, can be reasonably suspected to be the person behind the wheel. Glover, 140 S. Ct. at 1188.

In addition, we note that our eluding statute, N.J.S.A. 2C:29-2(b), codifies a rebuttable presumption that “the owner of a vehicle or vessel [observed to be eluding the police] was the operator of the vehicle or vessel at the time of the offense.” That statutory presumption offers further support for the “commonsense” inference that the person who owns a vehicle is likely, albeit not certain, to be the person driving it.

We are mindful that, as Justice Kagan’s concurrence in Glover observed, sometimes a household with multiple drivers may share the same vehicle (such as “a family minivan”) owned by only one family member. 140 S. Ct. at 1193 (Kagan, J., concurring). Those sharing arrangements can be more common in less affluent households that cannot afford multiple vehicles. Even so, we have been supplied with no data that refutes the “commonsense” inference of ownership endorsed by the Glover majority.

The constitutional requirement of “reasonable and articulable” suspicion to stop a vehicle, articulated decades ago by the Supreme Court in Prouse, remains the Fourth Amendment standard. As Prouse and its progeny forbid, an officer may not stop a car on a mere hunch that the driver may lack proper credentials. The information generated by an MDT query reflecting that the

    

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owner has a suspended or revoked license presumptively supplies such reasonable suspicion in the absence of information that negates that inference.

We therefore follow the Glover majority’s guidance and hold that, in the absence of information that reasonably indicates to a pursuing officer that the driver is not the vehicle’s owner, the MDT data furnishes reasonable suspicion to authorize the stop. Neither the parties nor amici have cited to us an opinion from another state’s highest court that has rejected such a construction of Glover, or declined to follow that opinion under their own state constitutions.

That said, there is a crucial limitation to that principle, one on which nearly all counsel before us agree. The limitation is that once it becomes reasonably apparent to the officer that the observed driver does not resemble the owner -- either by the photo displayed on the MDT or the age, gender, or description of the owner reported on the license or other visible characteristics -- the pursuit or stop of that driver must cease. This obligation to cease the process is illustrated by the hypothetical scenario posited in the Glover majority opinion involving an officer who “knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid- twenties.” 140 S. Ct. at 1191.

Furthermore, an officer making an MDT-based stop who is presented with sufficient objective reason to believe the driver is not the owner may not,

  

39

without further additional constitutional justification, linger by the vehicle and continue the roadside detention, even to collect or review the driver’s documentation. As the Attorney General, defendants, the ACDL, and the ACLU all agree, the stop must end. The officer in that situation may only attempt to briefly explain the vehicle was inadvertently stopped, and tell the driver that the driver is free to proceed. Such a very brief conversation might helpfully dispel possible confusion by the motorist. Indeed, none of the parties advocate that the officer should say nothing and simply drive away and leave motorists wondering what had occurred and whether they are free to leave.

We reject the State’s argument, which is not supported by the Attorney General, that an officer who realizes the driver is not the owner nonetheless can prolong the stop to delve into whether the driver has proper credentials. As the Supreme Court has noted, the Fourth Amendment does not allow motor vehicle stops to be unduly prolonged. Rodriguez v. United States, 575 U.S. 348, 350-51 (2015) (holding that a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of the stop (alterations in original) (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005))). New Jersey case law adheres to that principle. See Dunbar, 229 N.J. at 540; see also State v. Nelson, 237 N.J. 540, 552-54 (2019) (applying Dunbar and holding that the prolongment of a stop was constitutional only

     

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because facts apparent to the officer gave rise to reasonable and articulable suspicion of criminal activity). There is no constitutional justification for the continued detention that has been advocated here by the State.13

If, however, during the brief time in which the officer is lawfully at the side of the car providing the motorist with an explanation and permission to leave, that officer observes in plain view a firearm, illegal narcotics, or other apparent contraband within the vehicle, the officer may pursue a further investigation. In that situation, the officer may detain the motorist for an additional reasonable period of time based on reasonable suspicion that another, separate crime is being or has been committed. Such further investigation may include a canine drug sniff, provided the sniff does not consume an unreasonable period of time. See Dunbar, 229 N.J. at 540.

In announcing these principles, we are cognizant that it can be impractical or hazardous for an officer to determine whether a driver clearly does not resemble the photo or description of the vehicle owner. The stop may occur at night in a poorly lit area, or the age, gender, height, or weight of the driver may not be readily ascertainable. These are all practical impediments

13 The State’s reliance on cases such as State v. Dickey, 152 N.J. 468 (1998), and Dunbar for the proposition that law enforcement may make the ordinary inquiries incidental to a lawful traffic stop is misplaced. Once reasonable suspicion has dissipated, the continued seizure is no longer lawful, so that line of cases does not apply.

   

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affecting the totality of circumstances, and the reasonableness of an officer’s continued inference that the stopped motorist is indeed the vehicle owner. But, as the Supreme Court posited with its older-male and younger-female hypothetical in Glover, there will be other situations in which the mismatch is patently and immediately obvious. In such instances of obvious mismatch, the constitutional grounds to continue the stop evaporate.

Lastly, although we decline the invitation of defendants and the ACDL and ACLU to adopt a rule of law that requires visual confirmation before a vehicle is stopped, we encourage law enforcement officials to make reasonable efforts to attempt such verification if -- and only if -- it is feasible and safe to do so.14 We express that encouragement mindful of what can be an alarming and intimidating experience for an innocent motorist when pulled over by the police, particularly persons of color. The Supreme Court recognized that

14 Indeed, the two cases in Donis illustrated that at times such visual confirmation is feasible, as the police managed to confirm a visual match before stopping both motorists. 157 N.J. at 48-50. We do not, of course, condone dangerous driving maneuvers by police officers to obtain a glimpse of a passing motorist, particularly on dark, hilly, or curving roads. Our point is that if obtaining a visual confirmation is reasonably safe and practicable, the officer can avoid wasting time and creating unnecessary inconvenience for both the officer and the motorist. See also Donis, 157 N.J. at 64 (Stein, J., concurring) (cautioning against “an unproductive application of police resources” in utilizing MDT data, albeit in the context of random, suspicionless stops).

    

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realistic potential for psychological trauma long ago in Prouse, and it remains a concern to this day.

The frequency with which innocent drivers can be stopped has dramatically increased with newer technology that has surpassed the one-at-a- time MDT queries involved in Donis in 1998 -- ALPRs now enable 1,800 or more licenses to be checked simultaneously within a minute. ALPR Operational Guide at 9. Given that rapid change in technology, the data provided to us by the Attorney General showing that nearly 30 percent of drivers stopped by the State Police for suspected license or registration violations are not issued summonses -- which suggests that in numerous suspected suspended-license cases the drivers may not be the vehicles’ owners -- is worrisome. Nonetheless, as a matter of federal and state constitutional law, we do not mandate visual confirmation. Instead, we leave it to policymakers to consider whether other measures can be taken without sacrificing public safety that could reduce the number of MDT-based stops of innocent motorists.15

15 See, e.g., N.J.S.A. 2C:35-10c(a) (the Legislature’s declaration in the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act that the smell of marijuana alone can no longer be a sufficient basis to search a vehicle without a warrant).

     

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C.
We now apply the above principles to the present case. To begin with,

we agree with the trial court and the Appellate Division that Officer Kless had a sufficient reasonable and articulable suspicion to stop the Nissan in the circumstances presented. The MDT display, which was not controverted, reported that the registered owner of the Nissan had a suspended license. The trial court accepted as credible Kless’s account that it was too dark to see if the motorist, who was already driving away, looked like the registered owner.

We defer to the motion judge’s finding that Kless was unable to determine who was driving and thus had no reason to believe the driver was not the Nissan owner until the point when Kless walked up to the car’s passenger side and saw the two occupants from a close distance. See Smart, ___ N.J. at ___ (slip op. at 10) (requiring deference to a trial court’s factual findings from a suppression hearing if based on “sufficient credible evidence in the record” (quoting Dunbar, 229 N.J. at 538)). By that point, it was apparent to Kless that Williams, a 120-pound male, was not the 180- to 200- pound female who was the car’s registered owner.

 

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We then consider the next step in the sequence of events, when Kless arrived at the passenger side of the car next to the open window.16 According to Kless’s own statement to his fellow officer, Kless said “I can’t tell whether I got smell [of marijuana] or not,” stating that he was unsure because of his stuffy nose and wanted a second opinion. The trial court’s decision did not quote or discuss that important equivocation. The record is unclear about the precise point in time when Kless first believed that he might have smelled marijuana while at the car window. His confidence in his perception increased in retrospect after the bag of marijuana was discovered and then later at the suppression hearing.

We agree with defendants that Kless’s uncertain perception of marijuana odor he initially conveyed to his fellow officer at the scene fails to rise to the level of reasonable and articulable suspicion of criminality to have authorized their continued detention at the roadside, once the officer objectively determined the driver was not the owner. “Under the plain-view doctrine, the constitutional limiting principle is that the officer must lawfully be in the area

16 We are unpersuaded that defendants in the trial court waived their ability to argue on appeal that the stop was unduly prolonged. They moved to suppress all of the incriminating evidence derived from the stop and search of the Nissan, and their motion reasonably encompassed all steps that led to that seizure even though their main focus was on the validity of the initial stop.

45

where he observed and seized the incriminating item or contraband, and it must be immediately apparent that the seized item is evidence of a crime.” State v. Gonzales, 227 N.J. 77, 101 (2016) (emphasis added).17 Although the plain-view doctrine typically is raised in the context of probable cause to conduct a search, rather than reasonable suspicion to make a stop, neither level of suspicion authorizes police intervention that is based on a mere hunch.

Kless’s ability to smell was admittedly impaired by his cold.
Reasonable suspicion, although it does not require certainty or probability, cannot be founded upon what an officer with a stuffy nose tells his colleague he literally “can’t tell.” The smell of marijuana under these circumstances was not “plain” to Kless as he described it to Lokerson. His conduct in requesting another opinion demonstrated his uncertainty. Meanwhile Lokerson, who apparently had no stuffy nose, told Kless that he did not detect any odor. The facts here are simply too weak to support a plain-smell justification to prolong this mistaken stop and proceed with a search of the car once it was apparent that the owner was not the driver.

Although the drug-sniffing dog arrived with Lokerson only a few minutes later and the search was performed quickly, defendants should have

17 The “plain smell” doctrine is an analogue to the “plain view” exception. State v. Judge, 275 N.J. Super. 194, 200 (App. Div. 1994).

   

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been already permitted to leave at that point. Kless did not observe any contraband inside the car while he was standing next to it. Nor did he report that Williams appeared to be impaired by drugs or alcohol. And, as the video later showed, Williams had not run a red light or violated traffic laws. Therefore, immediately upon observing the occupants of the vehicle, Kless should have done no more than explain the vehicle had been inadvertently stopped and told defendants they were free to leave.

In sum, we conclude as a matter of law that the police lacked a “reasonable and articulable suspicion” to prolong the stop. Dunbar, 229 N.J. at 540. The fruits of the ensuing car search were therefore unconstitutionally obtained and must be suppressed.

We accordingly reverse the suppression rulings of the Appellate Division and the trial court because of the stop’s unjustified prolongation. Because the judgments of conviction for gun possession were based on evidence of a seized weapon that should have been excluded at trial, we vacate defendants’ convictions of those charges and remand for further proceedings.

IV.
Although it is not necessary for us to do so in light of our reversal of the

suppression rulings, we very briefly comment on the remaining two points raised in the petitions.

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A.
Defendants both contend the trial court committed harmful error by

issuing the model jury charge on gun possession, even though their trial counsel did not object to the charge. Specifically, defendants criticize the portion of the model charge that allows the jury to make a permissive inference that a defendant possesses a firearm when the circumstantial evidence makes it “more probable than not” that the inference is true. Model Jury Charges (Criminal), “Possession of Firearms, Weapons, Destructive Devices, Silencers or Explosives in a Vehicle (N.J.S.A. 2C:39-2)” (approved Mar. 30, 1993). Defendants contend that the probability-based language improperly shifts or dilutes the State’s burden to prove the element of possession beyond a reasonable doubt.

We discern no plain error stemming from the use of the model charge in this case. The model charge has been in existence for decades and was derived from previous case law. See State v. Humphreys, 54 N.J. 406, 415-16 (1969) (holding that a jury instruction stating that the presence of a firearm could give rise to a presumption -- rather than an inference -- of firearm possession undermined the State’s constitutional burden of proof); State v. Bolton, 230 N.J. Super. 476, 480 (App. Div. 1989) (“[T]he jury may be advised that it can

   

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draw an inference [of possession] if it finds it more probable than not that the inference is true.”).

The judge here read the relevant portion of the model charge essentially verbatim. See State v. Ramirez, 246 N.J. 61, 70 (2021) (discerning no plain error when the trial judge’s instruction tracked a model charge verbatim and no objection was made). The judge made clear that the inference of possession was not mandatory, instructed the jury on specific relevant facts that it could consider such as the proximity of Williams and Kelly to the firearm within the car, and repeatedly advised the jurors of the State’s overall obligation to prove each element of the charged offenses beyond a reasonable doubt.

Nonetheless, given defendants’ assertion that the model charge’s reference to probability might confuse jurors, we refer this subject to the Model Criminal Jury Charges Committee and ask that the phrase “more probable than not” be removed to avoid possible confusion.18 A revised model charge should also underscore that the State ultimately must prove a defendant’s possession beyond a reasonable doubt. See N.J.R.E. 303(c).

18 We note that the model jury charge on circumstantial evidence includes a definition for an inference that avoids using the “more probable than not” language from Bolton, 230 N.J. Super. at 480. See Model Jury Charges (Criminal), “Circumstantial Evidence” (rev’d Jan. 11, 1993) (“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.”). Going forward, similar language is warranted for the weapons possession charge.

    

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B.
For sake of completeness, we finally address Williams’s individual

argument that he was unfairly prejudiced by evidence shown to the jury of his conduct at the scene when he questioned the police’s right to conduct a canine sniff and search of the car without the owner’s permission. The Appellate Division correctly held that the video footage should have been played without the audio. However, we also concur with the Appellate Division that the erroneous admission of that evidence was harmless in light of the proofs as a whole and the context of the trial. The presentation of the evidence did not sacrifice Williams’s constitutional rights. Indeed, it is unclear that a jury would necessarily regard Williams in a negative light for voicing to the officers the property interests of the absent car owner.

V.
The judgment of the Appellate Division is affirmed in part and reversed

in part, and the matter is remanded to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, and FASCIALE join in JUDGE SABATINO’s opinion.

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