State v. Nelson, A-60 September Term 2017

• Court: New Jersey Supreme Court
• Writing for the Court: JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
• Citation: State v. Nelson, 237 N.J. 540, 206 A.3d 408 (N.J. 2019)
• Decision Date: 08 May 2019
• Docket Number: 080159,A-60 September Term 2017
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Dwight M. NELSON, a/k/a Nelson Dwight, Defendant-Appellant.

237 N.J. 540

206 A.3d 408

STATE of New Jersey, Plaintiff-Respondent,

v.Dwight M. NELSON, a/k/a Nelson Dwight, Defendant-Appellant.

A-60 September Term 2017

080159

Supreme Court of New Jersey.

Argued January 28, 2019

Decided May 8, 2019

Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Alicia J. Hubbard, of counsel and on the briefs).

Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jane C. Schuster, Trenton, of counsel and on the briefs, and Michele C. Buckley, Special Deputy Attorney General/Acting Union County Assistant Prosecutor, on the briefs).

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

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

In this appeal, the Court considers whether the wait for a canine unit's arrival prolonged defendant's traffic stop, and if so, whether the delay was justified by independent reasonable and articulable suspicion that defendant possessed drugs.

In October 2014, a New Jersey State Police (NJSP) detective received an anonymous tip from the Bureau of Alcohol, Tobacco, and Firearms (ATF), stating that a silver Infinity FX35 with a particular license plate driven by an African-American male would be traveling on the New Jersey Turnpike and transporting a large quantity of marijuana. Thirteen minutes after receiving the tip, the NJSP spotted the car and made a traffic stop, citing the driver for failing to maintain his lane and following another vehicle too closely.

During the traffic stop, NJSP Detective Jason Kazan asked defendant Dwight Nelson to exit his vehicle and read him his Miranda ¹ rights. Detective Kazan noticed an overwhelming smell of air freshener emanating from Nelson's vehicle and that Nelson seemed nervous and sweaty during the interaction. Detective Kazan also found it suspicious that there were two large bags in the cargo hold of Nelson's car and that Nelson's story regarding his travel plans changed during questioning.

Detective Kazan asked Nelson to consent to a search of his vehicle, which Nelson refused. Shortly thereafter, Detective Kazan called for a canine unit to come to the scene. Thirty-seven minutes later, a canine unit arrived and the canine alerted the detective to the presence of narcotics in Nelson's car. After Nelson was arrested, the NJSP obtained a warrant and searched his vehicle, finding eighty pounds of marijuana.

Nelson filed a motion to suppress the evidence discovered in his vehicle, claiming the police improperly extended the motor vehicle stop beyond its mission and without reasonable suspicion in order to transport a canine unit to the scene. The trial court rejected that argument and denied Nelson's motion, concluding that "Detective Kazan had reasonable and articulable suspicion to request the presence of a drug-sniffing dog" and that therefore "the extension of the traffic stop to effectuate the dog-sniff was lawful under New Jersey law." The Appellate Division affirmed but stated that "the use of the canine unit did not prolong the stop more than reasonably required to complete [the] Title 39 enforcement mission."

We conclude that Nelson's traffic stop was prolonged as he waited for the arrival of the canine unit, but that the officers had developed the reasonable and articulable suspicion necessary to prolong the stop under State v. Dunbar, 229 N.J. 521, 540, 163 A.3d 875 (2017). We therefore affirm as modified the Appellate Division's determination that the evidence seized during the car's subsequent search should not be suppressed.

I.

A.

On October 10, 2014, at approximately 6:30 p.m., NJSP Detective Jason Kazan learned that ATF in Cranbury had passed along a tip relating to a vehicle that was expected to be traveling through New Jersey. ATF provided the following information: a silver Infinity FX35 with a Florida registration and a specifically identified license plate number would be driven by an African-American male on the Turnpike from New York to Pennsylvania carrying a large amount of marijuana. The identities of both the tipster and ATF agent who passed along the tip are unknown.

After learning this information, Detective Kazan and two additional detectives went out in an unmarked police vehicle in an attempt to intercept the vehicle while it traveled on the Turnpike. Detective Kazan eventually located Nelson's vehicle on the Turnpike and pulled him over at approximately 6:43 p.m. for violating Title 39 traffic laws.²

Nelson lowered his driver-side window and Detective Kazan "was immediately overwhelmed by the smell of air fresheners emanating from the vehicle." Detective Kazan also saw "Febreze" air fresheners located in several areas of the car. Based on his training and experience, Detective Kazan testified that air fresheners can be used as a masking agent for drugs. Nelson was then asked to step out of his car, where he was administered his Miranda warnings.

Once Detective Kazan began speaking with Nelson, he noticed that Nelson was sweating profusely, appeared visibly nervous, and was shaking and trembling. Detective Kazan also testified that Nelson's story about where he was going changed during their conversation. At first, Nelson told the detective he had been in the Bronx to visit his aunt and was now on his way to Philadelphia to visit his cousin, but later Nelson stated he had been visiting his cousin in New York and was heading to Philadelphia to visit a friend. Nelson failed to give exact addresses of the individuals whom he visited, in both instances.

During this exchange, Detective Kazan noticed that Nelson's car was devoid of any personal belongings, aside from two very large bundles in the cargo hold of the car. Detective Kazan asked Nelson what the bags contained, and Nelson stated they contained shoes from a store he was closing. During their conversation, Nelson also admitted that he had been previously arrested for possession of marijuana.

Based on his belief that Nelson's car contained narcotics, Detective Kazan asked Nelson for permission to search the vehicle, but Nelson denied the request. Detective Kazan testified that he believed there was "reasonable articulable suspicion [that] there was crime afoot" based on the following factors: (1) the initial tip from ATF; (2) the moving violations observed; (3) Nelson's nervous behavior; (4) Nelson's conflicting accounts of his trip itinerary; (5) the lack of any personal belongings in the vehicle; (6) the large bags in the cargo hold; (7) Nelson's admission of prior narcotics arrests; and (8) the overwhelming smell of air freshener.

Considering those factors, Detective Kazan called for a canine unit to be brought to the scene at 7:21 p.m. The canine arrived at 7:58 p.m. and conducted a sniff of Nelson's vehicle. The canine alerted the officers to the presence of narcotics in the rear hatch of the vehicle. Detective Kazan then placed Nelson under arrest and called for a tow truck.

The detectives transported the vehicle to the Newark Police Station and proceeded with an application for a search warrant. At 11:15 p.m., Detective Kazan secured a search warrant and conducted a search of Nelson's vehicle. A search of the vehicle led to the discovery of eighty pounds of marijuana located in the two bundles, and Detective Kazan issued citations for Nelson's two traffic violations and for driving while in possession of narcotics.

B.

On September 28, 2015, the parties appeared before the trial court for a motion to suppress the evidence found in Nelson's vehicle. In his motion, Nelson contended that the motor vehicle stop and subsequent search of his vehicle violated his Fourth Amendment rights. Detective Kazan was the only witness to testify at the suppression hearing.

The motion court analyzed one issue relevant to this appeal: whether the extension of the traffic stop to allow for the dog-sniff of Nelson's vehicle was constitutional. The motion court recognized that "Detective Kazan extended the length of time of the initial motor vehicle stop and expanded the scope of the search beyond the limits of the motor vehicle stop." The court determined, however, that Detective Kazan had reasonable and articulable suspicion to do so based upon the independently corroborated information provided by ATF, along with Nelson's nervous behavior, Nelson's conflicting itinerary statements, the presence of large bags in the car's cargo area, Nelson's admission of prior arrests, and the car's strong odor of air fresheners.

On November 2, 2015, Nelson pled guilty to first-degree possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), in a quantity over twenty-five pounds, contrary to N.J.S.A. 2C:35-5(b)(10)(a). The court sentenced Nelson to a term of six years' imprisonment with twenty-seven months of parole ineligibility and imposed the mandatory fines and penalties. Nelson appealed the denial of his motion to suppress pursuant to Rule 3:5-7(d).

On appeal, Nelson argued that the wait for the canine unit's arrival unreasonably prolonged his detention. The Appellate Division rejected Nelson's argument. The panel accepted the motion court's factual findings that Nelson refused to consent to a search of his car at 7:21 p.m. and the canine unit arrived at 7:58 p.m. The panel also turned to this Court's ruling in Dunbar that an officer cannot "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." (quoting 229 N.J. at 540, 163 A.3d 875 ). The panel considered the circumstances and timeline of the stop in this case and concluded that "the use of the canine unit did not prolong the stop...