State
v. Mark Dunbar (A-94-15)
(077839)
Argued April 24, 2017 -- Decided July 10,
2017
FERNANDEZ-VINA, J., writing for the
Court.
In this appeal, the
Court considers the appropriate standard for police officers to conduct a
canine sniff for the detection of narcotics. In particular, the Court
determines whether police require reasonable suspicion of a drug offense to
effect a canine sniff during a motor vehicle stop.
Officer
Tardio recognized the car as that of defendant Mark Dunbar. On May 2, 2013, the
Bradley Beach Police received information from the Manasquan Police Department
that a female reported she “was getting her drugs from Mark Dunbar.” The
anonymous informant also reported that Dunbar used a green Ford Focus, with a
New Jersey license plate matching that of the car parked at QuickChek, to
distribute narcotics.
Officer
Tardio pulled into the QuickChek parking lot to initiate a motor vehicle stop,
exited his patrol car, and approached the suspect vehicle. While Officer Tardio
spoke with Dunbar, Officer Major arrived on the scene as backup. Officer Major
was accompanied by a narcotics canine. Upon Officer Major’s arrival, Officer
Tardio instructed Dunbar to exit the vehicle and walk toward Officer Major
while he spoke with Lisa Parker. Then, Lisa’s sister, Deborah Parker, exited
the QuickChek. At that time, Officer Tardio confirmed that all three
individuals arrived at the QuickChek together, connecting them to Dunbar’s
vehicle.
After
identifying all three individuals, Officer Tardio “immediately” contacted
dispatch to request a warrant search; the search returned an outstanding
warrant for Deborah Parker. Officer Tardio requested the presence of a female
officer to arrest Deborah Parker. Officer Tardio testified that it “maybe” took
about two minutes for the female officer to arrive. In the meantime, Officer
Tardio spoke with Dunbar and advised him of the recent allegations that he was
selling drugs. Dunbar denied any wrongdoing. Officer Tardio informed Dunbar
that Officer Major and his narcotics canine would conduct a sniff around the
vehicle’s exterior. The canine positively indicated the presence of narcotics.
The record is unclear as to whether the canine sniff took place while the
officers were waiting for the arrival of the female officer from Asbury Park or
after she arrived.
Officer
Tardio instructed Dunbar that he could consent to a search of his vehicle or
have his car impounded pending a search warrant. Dunbar initially refused
consent but changed his mind when a tow truck arrived. Officer Tardio read
Dunbar his rights. With Dunbar’s permission, the officers searched the
vehicle’s trunk, from which they recovered Xanax, oxycodone, and heroin. The
officers arrested Dunbar and Deborah Parker. A Monmouth County grand jury
indicted Dunbar for three counts of third-degree possession of controlled
dangerous substances.
Prior to
trial, Dunbar moved to suppress the drugs. The court granted Dunbar’s motion,
holding that the officers did not have reasonable suspicion that Dunbar was
engaged in a drug transaction in his vehicle in the QuickChek parking lot at
that time and therefore could not perform a canine sniff. Furthermore, the
court held that, based on the number of officers and the threat of towing his
vehicle, Dunbar did not voluntarily provide consent.
Ten days
later, the State moved for reconsideration in light of the then-recent United
States Supreme Court decision, Rodriguez v. United States, 575 U.S. ___,
135 S. Ct. 1609 (2015). The trial court denied the motion. The
court explained, “[t]he State has not met its burden of proof that the time for
tasks necessitated by [Dunbar’s] traffic violation included the time of the dog
sniff.” The court entered an order denying reconsideration.
Prior to
trial, the Appellate Division affirmed the suppression of the drugs. Citing
prior Appellate Division cases, the court posited that New Jersey’s standard
for canine sniffs is reasonable suspicion. The court concluded that the
officers did not harbor reasonable suspicion that Dunbar or the Parker sisters
were engaged in drug activity and found that the officers lacked reasonable
suspicion to effectuate the canine sniff. The panel also affirmed the trial
court’s holding on consent.
The Court
granted the State’s motion for leave to appeal. 226 N.J. 543
(2016).
HELD: The Court
adopts the federal standard barring unnecessary delays for the purpose of
canine sniffs. Officers do not need reasonable suspicion of a drug offense
provided that the canine sniff does not prolong the stop beyond the time
required to complete the stop’s mission.
1. The Fourth Amendment to
the United States Constitution and Article I, Paragraph 7 of the New Jersey
Constitution equally guarantee “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures.” A lawful roadside stop by a police officer constitutes a seizure
under both Constitutions. To justify such a seizure, a police officer must have
a reasonable and articulable suspicion that the driver of a vehicle, or its
occupants, is committing a motor-vehicle violation or a criminal or disorderly
persons offense. During an otherwise lawful traffic stop, a police officer may
inquire into matters unrelated to the justification for the traffic stop. An
officer’s ability to pursue incidental inquiries, however, is not without
limitations. Specifically, the incidental checks may not be performed “in a way
that prolongs the stop, absent the reasonable suspicion ordinarily demanded to
justify detaining an individual.” Rodriguez, supra, 135 S.
Ct. at 1615.
2. In United
States v. Place, the United States Supreme Court held that a canine sniff
does not constitute a “search” within the meaning of the Fourth Amendment.
462 U.S. 696, 706-07 (1983). The Court reasoned that a canine
sniff is so limited in the manner of investigation and in the noncontraband
items it reveals that it is “much less intrusive than a typical search.” Id. at
707. In Illinois v. Caballes, 543 U.S. 405, 408
(2005), the Court held that “a dog sniff would not change the character of a
traffic stop that is lawful at its inception and otherwise executed in a
reasonable manner, unless the dog sniff itself infringed [upon the defendant’s]
constitutionally protected interest in privacy.” In Rodriguez, supra,
the Court reaffirmed its holding that, although an officer “may conduct certain
unrelated checks during an otherwise lawful traffic stop,” the officer “may not
do so in a way that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.” 135 S. Ct. at
1615. The federal standard does not require particularized reasonable suspicion
to conduct a canine sniff during the course of a routine traffic stop. But if
the canine sniff extends the traffic stop beyond the time reasonably required
to complete the traffic stop’s purpose, the sniff is unlawful absent
independent reasonable suspicion of criminal activity. (pp. 16-20)
3. The
Appellate Division has echoed some of the federal approach regarding canine
sniffs but has departed from the federal standard by requiring reasonable and
articulable suspicion to justify canine sniffs
4. The Court
now adopts the federal standard for canine sniffs. Accordingly, an officer does
not need reasonable suspicion independent from the justification for a traffic
stop in order to conduct a canine sniff but may not conduct a canine sniff in a
manner that prolongs a traffic stop beyond the time required to complete the
stop’s mission, unless he possesses reasonable and articulable suspicion to do
so. In other words, in the absence of such suspicion, an officer may not add
time to the stop.
5. Applying
this legal standard to Dunbar’s appeal, two issues arise: whether the canine
sniff prolonged Officer Tardio’s traffic stop beyond the time reasonably
required to address Dunbar’s parking infraction, and, if so, whether this delay
was justified by independent reasonable suspicion that Dunbar possessed drugs
at that time. The record does not provide sufficient information. The Court
expresses no opinion as to whether the canine sniff prolonged the traffic stop
or whether the totality of the circumstances generated reasonable suspicion
that Dunbar possessed drugs at the time of the stop, leaving those
determinations to the trial court on remand.
The judgment
of the Appellate Division is REVERSED and the matter is REMANDED for
proceedings consistent with this opinion.
