State v. Smart

• Decision Date: 08 March 2023
• Docket Number: A-6-22
• Parties: State of New Jersey, Plaintiff-Appellant, v. Kyle A. Smart, Defendant-Respondent
• Court: New Jersey Supreme Court

1

State of New Jersey, Plaintiff-Appellant, v. Kyle A. Smart, Defendant-Respondent

No. A-6-22

Supreme Court of New Jersey

March 8, 2023

Argued November 28, 2022

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 473 N.J.Super. 87 (App. Div. 2022).

Samuel J. Marzarella, Chief Appellate Attorney, argued the cause for appellant (Bradley D. Billhimer, Ocean County Prosecutor attorney; Samuel J. Marzarella, of counsel and on the briefs).

Clifford P. Yannone argued the cause for respondent (Starkey Kelly, Kenneally, Cunningham &Turnbach, attorneys Clifford P. Yannone, on the briefs).

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

Monica do Outeiro, Assistant Monmouth County Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Jeffrey H. Sutherland, President, County Prosecutors Association of New Jersey, attorneys; Jeffrey H. Sutherland, of counsel, and Monica do Outeiro, on the brief).

Elizabeth C. Jarit, Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Elizabeth C. Jarit, of counsel and on the brief).

Bruce S. Rosen argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; Bruce S. Rosen, on the brief).

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).

FASCIALE, J., writing for a unanimous Court.

In this case, the Court considers whether the automobile exception to the warrant requirement, as articulated in State v. Witt, 223 N.J. 409, 447-48 (2015), permitted the warrantless search of defendant Kyle Smart's vehicle after an investigative stop. In particular, the Court considers whether the police actions giving rise to probable cause to search the vehicle were prompted by circumstances that were "unforeseeable and spontaneous," as required under Witt.

On August 4, 2021, Officer Louis Taranto commenced surveillance in front of a condominium complex located in an area where frequent narcotics transactions and other criminal activity occurred. Based on information received a month earlier from a confidential informant (CI), Taranto identified a 2017 GMC Terrain parked at the complex as a vehicle that had been involved in prior drug deals and that was used by a drug dealer known as "Killer." Taranto conducted a database search and learned defendant had been listed with the moniker "Killer" and had multiple arrests and felony convictions involving controlled dangerous substances.

Taranto surveilled the GMC. After about thirty minutes, he observed a female (the driver), defendant, and a child enter the GMC. Taranto followed them to a residence where he saw activity consistent with a drug transaction.

At some point, Officer Samantha Sutter followed the GMC to the residence. Sutter knew that multiple drug users lived there. Indeed, two months earlier, a concerned citizen had notified Sutter that drug activity may have occurred at the residence. Taranto and Sutter reasonably suspected that defendant had previously engaged in drug deals at the residence.

The officers' suspicions were bolstered by what Sutter then witnessed. Sutter observed defendant exit the GMC and walk towards the backyard of the residence. Sutter was briefly unable to see defendant. Defendant returned from the backyard, accompanied by an unidentified female; he then entered the GMC while the unidentified female returned to the residence.

Considering the information from the CI and the concerned citizen, Taranto's investigation, and the surveillance by Taranto and Sutter, Officers Taranto and Sutter determined they had reasonable and articulable suspicion to perform an investigative stop. Approximately one hour and seventeen minutes after Taranto first spotted the GMC, Taranto directed a third officer to pull over the GMC. Taranto and a fourth officer patted defendant down, finding no incriminating evidence, and the driver declined consent to search the GMC. Suspecting the GMC contained drugs, the officers called for a canine to perform an exterior sniff.

Twenty-three minutes after initiating the stop, a fifth officer arrived with Duke, a canine, whose positive drug "hit" established probable cause. The officers immediately searched the GMC and found drugs, drug paraphernalia, weapons, and ammunition. Defendant admitted to owning the contraband. The police arrested defendant and charged him with various crimes.

In a comprehensive oral decision, the trial judge suppressed the evidence seized from the search of the GMC because the police failed to obtain a warrant. The Appellate Division affirmed. 473 N.J.Super. 87 (App. Div. 2022). The Court granted leave to appeal. 252 N.J. 35 (2022).

HELD: The circumstances giving rise to probable cause in this case were not "unforeseeable and spontaneous." Those circumstances included investigating previous information from the CI and concerned citizen about defendant, the vehicle, and narcotics trafficking in the area; lengthy surveillance of defendant and the vehicle; reasonable and articulable suspicion that defendant had engaged in a drug deal; and a positive canine sniff of the vehicle. The Court therefore affirms the order suppressing the physical evidence seized from the vehicle.

1. To overcome the presumption under both the United States and the New Jersey Constitutions that a warrantless search is invalid, the State must show by a preponderance of evidence that the search falls within one of the well-recognized exceptions to the warrant requirement. One such exception is the automobile exception to the warrant requirement. In State v. Alston, the New Jersey Supreme Court applied federal constitutional law and concluded that "the exigent circumstances that justify the invocation of the automobile exception are the unforeseeability and spontaneity of the circumstances giving rise to probable cause, . . . and the inherent mobility of the automobile stopped on the highway." 88 N.J. 211, 233 (1981) (emphasis added). Under subsequent federal decisions, however, the United States Supreme Court has held that probable cause to believe a car contains contraband "alone satisfies the automobile exception to the Fourth Amendment's warrant requirement." Maryland v. Dyson, 527 U.S. 465, 467 (1999). The federal automobile exception thus does not require "a separate finding of exigency in addition to a finding of probable cause." Ibid. (pp. 10-17) 2. In Witt, the New Jersey Supreme Court declined to adopt the federal standard while simultaneously overruling state cases decided after Alston that imposed an exigent-circumstances requirement. The Witt Court viewed Alston's requirement that probable cause be unforeseeable and spontaneous to "properly balance[] the individual's privacy and liberty interests and law enforcement's investigatory demands." 223 N.J. at 447. Importantly, Witt explained that Alston's "unforeseeability and spontaneity" requirement "does not place an undue burden on law enforcement." Ibid. Witt deliberately kept the "unforeseeability and spontaneity" language first articulated in Alston and explicitly fortified it with the extra protections guaranteed under Article I, Paragraph 7 of the New Jersey Constitution. Article I, Paragraph 7 thus offers greater protection than the Fourth Amendment with regard to the automobile exception through the extra requirement that the circumstances giving rise to probable cause be "unforeseeable and spontaneous" -- in addition to the inherent mobility of the automobile stopped on a roadway. In New Jersey, both elements are necessary to justify a warrantless automobile search. (pp. 17-20)

3. The Court notes that the circumstances giving rise to probable cause here included a sequence of interconnected events that began with the information Sutter received from a concerned citizen two months prior to the automobile stop. The Court reviews in detail the facts of this case and concludes that the police actions that led to the warrantless search of the GMC were not prompted by the "unforeseeability and spontaneity of the circumstances giving rise to probable cause." Witt, 223 N.J. at 414 (quoting Alston, 88 N.J. at 233). Rather, the investigative stop was deliberate, orchestrated, and wholly connected with the reason for the subsequent seizure of the evidence. A warrant was therefore required before searching the GMC. The question of whether the circumstances giving rise to probable cause were unforeseeable and spontaneous is a fact-sensitive inquiry that should be analyzed case by case. (pp. 20-23)

4. In response to arguments by the State and Attorney General, the Court notes that, although it is true that police officers who possess probable cause well in advance of an automobile search should get a warrant, the Alston/Witt test requires not just that probable cause not exist long in advance of the search, but that it" aris[e] from unforeseeable and spontaneous circumstances." Witt, 223 N.J. at 450 (emphasis added). And there is no justification to part ways with Alston/Witt. (pp. 23-24)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-LOUIS, and WAINER APTER join in JUSTICE FASCIALE's opinion.

JUSTICE SOLOMON and JUDGE SABATINO (temporarily assigned) did not participate.

OPINION

FASCIALE JUSTICE

In this case, we determine whether the automobile exception to the warrant requirement,...