State v. Smart

Citation473 N.J.Super. 87,278 A.3d 824
Decision Date30 June 2022
Docket NumberDOCKET NO. A-2334-21
Parties STATE of New Jersey, Plaintiff-Appellant, v. Kyle A. SMART, Defendant-Respondent.
CourtNew Jersey Superior Court – Appellate Division

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

Clifford P. Yannone, Toms River, argued the cause for respondent (Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Clifford P. Yannone, of counsel and on the brief).

Before Judges Messano, Accurso and Rose.

The opinion of the court was delivered by

ROSE, J.A.D.

By leave granted, the State appeals from a March 1, 2022 Law Division order suppressing evidence seized from a motor vehicle without a warrant. Police conducted an investigatory stop after surveilling the car for more than an hour and developing information that front seat passenger, Kyle A. Smart, was engaged in drug activity. At the roadside stop, no evidence of drug activity was observed in plain view; the occupants of the car neither made incriminating statements nor furtive movements; and the driver denied consent to search. Police then requested a K-9 unit. The dog alerted to the presence of narcotics, leading to a warrantless search of the car and seizure of a loaded handgun and drugs from the cabin.

Finding police had reasonable and articulable suspicion to pull over the vehicle, the motion judge upheld the stop and further determined probable cause arose when the canine sniff revealed the presence of narcotics in the car. However, the judge found the circumstances giving rise to probable cause were not "unforeseeable and spontaneous," justifying a warrantless search under the automobile exception to the warrant requirement pursuant to State v. Witt, 223 N.J. 409, 450, 126 A.3d 850 (2015). Accordingly, the judge suppressed the evidence seized.

On appeal, the State primarily contends police did not "possess[ ] probable cause well in advance of [the] automobile search," and thus law enforcement did "not sit on probable cause," in a manner proscribed by Witt. See id. at 431-32, 126 A.3d 850. The State therefore maintains the warrantless search and seizure here passed constitutional muster under Witt.

Although we agree police could not have secured a warrant before the car was stopped and, in that sense, did not "sit" on probable cause, we disagree with the State's contention that probable cause under these circumstances was unforeseeable and spontaneous within the meaning of Witt. Notwithstanding the officers' reasonable suspicion that defendant was engaged in illegal activity involving drugs, leading to this investigatory stop, probable cause did not arise until the canine alerted for the presence of narcotics. We therefore conclude those circumstances were not unforeseeable and spontaneous under Witt and, as such, the automobile exception to the warrant requirement did not apply to this warrantless search. Accordingly, our review of the record leads us to affirm the motion judge's order, but we do so for slightly different reasons. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199, 773 A.2d 706 (2001) (permitting an appellate court to affirm for other reasons because "appeals are taken from orders and judgments and not from opinions").

I.

Finding the material facts essentially uncontroverted, the judge decided the motion without a testimonial hearing. See R. 3:5-7(c) (requiring a testimonial suppression hearing when material facts are in dispute). That finding was not contested in the trial court and is not disputed on appeal. We summarize the pertinent facts from the parties' written submissions and arguments before the motion judge.

Around 2:00 p.m. on August 4, 2021, Patrolman Louis Taranto of the Toms River Police Department, Special Enforcement Team (TRPD-SET) was conducting surveillance in the vicinity of a condominium complex located in the township. The complex was known to Taranto as a high crime area, which included frequent drug activity. Taranto noticed an unoccupied white 2017 GMC Terrain vehicle with tinted front windows parked in the complex's lot. The vehicle bore Georgia registration; a Carvana license plate frame was affixed to its front end.

While making these observations, Taranto recalled information he had received the previous month from a registered confidential informant (CI). According to the CI, "a black male with facial tattoos," between five-feet-seven and five-feet-nine inches, "with long dreadlocks," known as "Killer," operated a similar vehicle and distributed drugs "in the Toms River area." The CI had provided Taranto with a photograph of the GMC, which led the officer to identify the parked car. Based on the CI's information, Taranto conducted a database search, which disclosed defendant's name, height, and moniker. Defendant's mugshot depicted him with facial tattoos and long dreadlocks; his criminal record included drug-related arrests, and several convictions, including weapons offenses. The totality of this information led Taranto to believe defendant was the suspect described by the CI.

Approximately thirty minutes later, a woman entered the driver's side of the car, and defendant entered the front passenger's side after he placed a small child in the rear seat. Taranto followed the vehicle, which made stops at a restaurant and bank in Toms River, characterized by the officer as "consistent with legitimate patronage." Apparently, other TRPD-SET officers joined the surveillance.

Eventually, the car stopped at a residence located on Shenandoah Boulevard. The driver remained in the car. Defendant exited the car, walked to the backyard of the building, and returned shortly thereafter with an unidentified white woman. The woman entered the residence; defendant reentered the GMC. Police did not observe a hand-to-hand transaction but believed defendant and the woman had engaged in a drug deal based on the totality of the circumstances, including Taranto's training and experience, the information provided by the CI, and information provided by a concerned citizen (CC) to another TRPD-SET officer in June 2021. The officer told Taranto the CC suspected narcotics-related transactions between multiple residents of the building and the occupants of several cars that stopped there. On one occasion, the CC observed "two black males" arrive in a white GMC Terrain bearing the same Georgia license plate as defendant's vehicle.

At 3:17 p.m. on the date of the incident, approximately one hour and seventeen minutes after Taranto initially identified the car at the condominium complex, police stopped the GMC near Hooper Avenue and Feathertree Drive. Taranto asked defendant to get out of the car. A pat-down revealed no weapons or drugs. After his Miranda 1 rights were read to him, defendant declined to disclose his reason for stopping at the Shenandoah residence or identify anyone with whom he met. Defendant claimed he merely "stopped to ‘see his people.’ " The driver refused consent to search the GMC but stated "nothing in the car was hers." The officers then called for a K-9 unit, and asked the driver to step out of the vehicle and remove the child.

At 3:40 p.m., approximately twenty-three minutes after police stopped the car and consent to search was refused, the K-9 unit conducted an exterior sniff of the vehicle. Immediately following the canine's positive detection, police searched the vehicle. Inside a backpack located on the front passenger's side floor, police found suspected heroin packaged in more than 400 wax folds, an unloaded handgun magazine, and a digital scale. Police also seized a loaded .40 caliber handgun from the center console, and $1,600 in cash from a purse found on the rear seat. Defendant was arrested; the driver and her child were permitted to leave the scene in the GMC.

Defendant was charged in a seven-count Ocean County indictment with various drug and weapons offenses. He moved to suppress the evidence seized from the GMC, challenging the validity of the stop and the warrantless seizure of evidence. Following oral argument, the motion judge reserved decision.

In her March 1, 2022 decision from the bench, the judge initially found police "had articulable reasonable suspicion that criminal or unlawful activity had just occurred when they stopped the vehicle." Detailing the officers' observations as summarized above, the judge's decision was grounded in the totality of the circumstances during the "long period of surveillance."

Turning to the automobile exception to the warrant requirement, the motion judge noted the parties did not dispute probable cause arose when the canine alerted for the presence of narcotics. Thus, the remaining legal issue before the judge was "whether the police could search the vehicle or if they needed to impound the vehicle and obtain a search warrant." Citing Witt and our decision in State v. Rodriguez, 459 N.J. Super. 13, 207 A.3d 272 (App. Div. 2019), the judge was not persuaded by the State's argument that the circumstances giving rise to probable cause to search the GMC were unforeseeable and spontaneous.

Finding "everyone waited twenty-five minutes" for the K-9 unit to arrive, alert to the presence of drugs, and establish probable cause, the judge elaborated:

The investigatory stop was based on an hour-and-twenty-minute surveillance of the defendant that was initiated by a CI's tip. Stopping defendant's car was not based on some traffic violation which ... then led to probable cause to conduct a warrantless search. The surveillance, car stop, and K-9 sniff were based solely on the officers' belief that defendant had drugs in the vehicle.
Under Witt, the automobile exception to a warrantless search of defendant's car does not apply as their goal was a clear and deliberate effort to uncover drugs. There was nothing spontaneous about the decision to search defendant's
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2 cases
  • State v. Smart
    • United States
    • United States State Supreme Court (New Jersey)
    • March 8, 2023
    ...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). J. Marzarella, Chief Appellate Attorney, argued the cause for appellant (Bradley D. Billhimer, Ocean County Prosecutor, attorney; Samuel J......
  • State v. Gomez-Zuniga
    • United States
    • New Jersey Superior Court – Appellate Division
    • May 22, 2023
    ...... Wessells, 209 N.J. 395, 406 n.2 (2012) (quoting. Montejo v. Louisiana, 556 U.S. 778, 795 (2009)). . .          "Ordinarily,. our review of a trial court's decision on a suppression. motion is circumscribed." State v. Smart, 473. N.J.Super. 87, 94 (App. Div. 2022), affd 253 N.J. 156 (2023); see also State v. Dunbar, 229 N.J. 521,. 538 (2017). . 6. . "Deference is not due where, as in the present matter,. the trial court has not conducted a testimonial hearing and. the ......

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