State v. Dunbar

• Court: New Jersey Supreme Court
• Writing for the Court: JUSTICE FERNANDEZ–VINA delivered the opinion of the Court.
• Citation: State v. Dunbar, 229 N.J. 521, 163 A.3d 875 (N.J. 2017)
• Decision Date: 10 July 2017
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Mark DUNBAR, Defendant–Respondent.

229 N.J. 521

163 A.3d 875

STATE of New Jersey, Plaintiff–Appellant,

v.Mark DUNBAR, Defendant–Respondent.

Supreme Court of New Jersey.

Argued April 24, 2017

Decided July 10, 2017

Frank Muroski, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Frank Muroski, of counsel and on the briefs).

Stefan Van Jura, Deputy Public Defender II, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Stefan Van Jura, of counsel and on the briefs).

JUSTICE FERNANDEZ–VINA delivered the opinion of the Court.

In this appeal, we consider the appropriate standard for police officers to conduct a canine sniff for the detection of narcotics. In particular, we are called upon to determine whether police require reasonable suspicion of a drug offense to effect a canine sniff during a motor vehicle stop. We conclude that officers do not need such reasonable suspicion provided that the canine sniff does not prolong the stop beyond the time required to complete the stop's mission. We adopt the federal standard barring unnecessary delays for the purpose of canine sniffs.

The Bradley Beach Police Department knew defendant Mark Dunbar through several previous incidents and had recently received two tips that he was selling drugs. In 2013, a police officer initiated a motor vehicle stop of Dunbar and two passengers for parking in a handicapped parking space.

Shortly thereafter, another officer arrived with a canine trained to detect the presence of narcotics. The police instructed Dunbar to exit his vehicle. The first officer then checked if Dunbar and his two passengers had any outstanding warrants. Because one of the female passengers had an outstanding warrant, the police called a female officer from a nearby municipality to arrest her.

At some point, either while waiting for the female officer's arrival or shortly after her arrival, the second officer walked his canine around Dunbar's car. The canine signaled the presence of drugs. Faced with this information, Dunbar consented to a search of his car, which revealed narcotics. The State charged him with drug possession.

Dunbar moved to suppress the drugs recovered from his car. The trial court granted Dunbar's suppression motion, concluding that the police did not have the requisite reasonable suspicion that Dunbar was engaged in drug activity to conduct the canine sniff around Dunbar's car. The State filed a motion to reconsider based on the then-recent United States Supreme Court decision, Rodriguez v. United States , 575 U.S. ––––, 135 S.Ct. 1609, 191 L.Ed. 2d 492 (2015), which held that officers do not need reasonable suspicion to conduct a canine sniff but that they cannot delay a traffic stop to perform such a sniff. The court denied the State's motion.

The Appellate Division affirmed, holding that police officers need reasonable suspicion independent of the justifications for a traffic stop to perform a canine sniff. Despite recognizing that the timeline was unclear, the appellate panel also held that the canine sniff did not unreasonably prolong the traffic stop.

For the reasons set forth in this opinion, we reverse the grant of Dunbar's motion to suppress and remand for further factfinding. Specifically, we direct the trial court to assess whether the canine sniff prolonged the traffic stop and, if so, whether independent reasonable suspicion supported that delay.

I.

A.

The following facts derive from the undisputed testimony at defendant's motion to suppress hearing. On May 3, 2013, around 10:20 p.m., Bradley Beach Police Officer Michael Tardio was on patrol in a marked police vehicle. As he drove past a QuickChek convenience store, he observed a green Ford Focus parked in one of QuickChek's handicapped-reserved spaces. The car's New Jersey license plate did not bear a handicapped designation, nor was there a handicapped designation placard on display in the car's interior.

Officer Tardio recognized the car as that of defendant Mark Dunbar. Officer Tardio had personal knowledge of Dunbar through Dunbar's "many" prior interactions with law enforcement. In 2012, the Bradley Beach Police had arrested Dunbar for a narcotics offense. One week prior to the QuickChek traffic stop, Officer Tardio had received information from two sources—one identified informant and one anonymous informant—about Dunbar's alleged drug distribution activities in the area.

On April 28, 2013, five days prior to the traffic stop, Officer Tardio responded to Dunbar's complaints about harassing text messages he received from his friend's husband. Officer Tardio met with Dunbar at his apartment, where Dunbar showed him a text message threatening to harm him if he continued to sell narcotics to the sender's wife. Officer Tardio contacted the sender, who acknowledged sending the message and explained that his wife was a recovering drug addict to whom Dunbar had recently sold pills.

Then, on May 2, 2013, one day before the traffic stop, the Bradley Beach Police received information about Dunbar from the Manasquan Police Department. Specifically, the Manasquan Police relayed that a female, who "wanted to remain anonymous," reported she "was getting her drugs from Mark Dunbar," and disclosed his home address. 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.

Returning to May 3, 2013, the evening in question, Officer Tardio pulled into the QuickChek parking lot to initiate a motor vehicle stop, activating his emergency lights and pulling behind Dunbar's car. Office Tardio exited his patrol car and approached the suspect vehicle. He observed Dunbar in the driver's seat, as well as Lisa Parker, whom the officer also recognized from "[m]any prior dealings," in the rear passenger seat. Dunbar admitted to the officer that he parked in a handicapped space without possessing the appropriate license plate or placard because one of his passengers "had a bad back."

While Officer Tardio spoke with Dunbar, Bradley Beach Police 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, whom Officer Tardio also knew through prior encounters, 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. He testified that it is standard procedure to have a female officer search and arrest female suspects. Dispatch sent a nearby female officer from the Asbury Park Police Department because the Bradley Beach Police did not have a female officer on duty.

Officer Tardio testified that it "maybe" took about two minutes for the female officer to arrive from Asbury Park. In the meantime, Officer Tardio spoke with Dunbar and advised him of the recent allegations that he was selling drugs. Dunbar denied any wrongdoing. At this point, Officer Tardio informed Dunbar that Officer Major and his narcotics canine would conduct a sniff around the vehicle's exterior. After Officer Major walked the canine around the vehicle, 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's testimony did not specify the time of the canine sniff or whether the canine sniff substantially delayed the traffic stop. Before this Court, the State asserted that the canine sniff and the arrival of the female officer occurred "almost simultaneously," but did not offer an exact order of the events. The precise chronology of the canine sniff, specifically when the canine walked around Dunbar's vehicle and whether the sniff prolonged the purpose of the traffic stop, remains uncertain.

Given the positive canine sniff, 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 about ten minutes later. Officer Tardio read Dunbar his rights, including the right to refuse consent, the right to revoke consent, and the right to be present during the search. 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.

B.

At the time of his arrest, Dunbar was charged with parking in a handicapped parking space, contrary to N.J.S.A. 39:4–138(o), and possession of controlled dangerous substances (CDSs) by a motor vehicle operator, contrary to N.J.S.A. 39:4–49.1. Subsequently, a Monmouth County grand jury indicted Dunbar for three counts of third-degree possession of CDSs, contrary to N.J.S.A. 2C:35–10(a)(1).

Prior to trial, Dunbar moved to suppress the drugs seized from the trunk of his vehicle. The parties argued the motion in January 2015. The State presented Officer Tardio as its sole witness; Dunbar neither testified nor presented any witnesses. Defense counsel asserted that the canine sniff was not supported by reasonable suspicion and that Dunbar's consent was coerced. The State averred that the officers had reasonable suspicion that Dunbar was engaged in narcotics sales and that his consent was voluntary.

At the close of arguments from each party, the court rendered an oral decision granting Dunbar's suppression motion. The court found Officer Tardio to be a credible...