STATE OF NEW JERSEY IN THE INTEREST OF C.J A Juvenile

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3497-06T43497-06T4

STATE OF NEW JERSEY

IN THE INTEREST OF C.J.,

A Juvenile.

 
______________________________

Submitted August 13, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-0210-07A.

Yvonne Smith Segars, Public Defender, attorney for juvenile appellant (Jay Bernstein, Designated Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel; Jacqueline A. Farrell, on the brief).

PER CURIAM

C.J. appeals his juvenile adjudication for possessing fifty grams or less of marijuana, N.J.S.A. 2C:35-10(a)(4). The marijuana was seized by police from the ashtray of C.J.'s automobile after a routine motor vehicle stop. We reverse the Family Part's denial of C.J.'s motion to suppress the contraband, and the court's ensuing adjudication of guilt.

On the morning of May 5, 2006, C.J., who was then age seventeen, was driving his car on Route 9 in Howell Township. He was with two adult passengers, Harry Ganthier seated in the front, and Jordon Tuchol seated in the rear. C.J. was driving to a local fast-food restaurant, where they were going to eat before taking Ganthier to a court appearance in Freehold. C.J. made a lawful u-turn from Route 9 North onto Route 9 South, in the direction of the restaurant.

At this same time, a local patrolman on routine traffic duty, Officer Nancy Carroll, observed C.J.'s vehicle. She noticed that the car had a red "failed inspection" sticker, potentially indicating that the vehicle was not authorized to be on the road. According to her testimony, Officer Carroll also could see that both the driver and the front seat passenger were not wearing seatbelts. She moved her squad car behind C.J.'s vehicle and activated her lights and siren. C.J. immediately pulled over to the shoulder.

At Officer Carroll's request, C.J. produced his driver's license, registration and insurance card. The officer went back to her squad car and ran various computerized checks. The checks indicated that there was a bench warrant for C.J. issued by the Howell Municipal Court, apparently for his failure to appear at an unspecified court appearance. The checks also disclosed that C.J. had previously been arrested on a drug matter, although the record contains no indication that this prior arrest led to an adjudication. The record also does not specify the kind of drugs involved or whether C.J. had been considered a distributor or a simple possessor. The computer checks also showed an unquantified number of police "stops" of C.J. in the past, again without indicia of any adjudications. The front seat passenger also had a reported prior drug arrest.

The officer's computer searches did show that C.J.'s vehicle was lawfully within the statutory forty-five-day period to cure a failed inspection, N.J.S.A. 39:8-9. The officer therefore recognized that the red sticker had been properly displayed, and there was no basis to charge C.J. for an inspection violation.

After completing the computer checks, about forty-five minutes after first pulling C.J. over, Officer Carroll radioed for a K-9 unit to come to the scene with a drug-sniffing dog. She testified that she had made that request because C.J. "was going southbound [away from Freehold], [and] because of his prior criminal history." She also mentioned briefly in her testimony that she was familiar with C.J. by name from squad briefings at the police department, although she did not explain what had been said about C.J. in those briefings.

About five to ten minutes later, Officer Michael Pavlick of the K-9 unit arrived. The officers asked C.J. and his two passengers to get out of the car. They complied. The drug-sniffing dog then was brought to the driver's side of the vehicle, where the window was open. The dog jumped, displaying a reaction to the presence of potential contraband inside. Officer Pavlick then let the dog into the car interior. It began sniffing and scratching around the ashtray in the center console.

Officer Pavlick removed the dog from the car and put it back on a leash. He then went inside the car himself, opened the ashtray, and found several marijuana "roaches" inside. Subsequent laboratory testing confirmed that the seized roaches contained fifty or less grams of marijuana.

C.J. was taken into custody and charged with simple possession of marijuana, N.J.S.A. 2C:35-10(a)(4), a disorderly persons offense. He also was charged with two motor vehicle offenses, specifically the possession of a controlled dangerous substance ("CDS") in an automobile, N.J.S.A. 39:4-49.1, and failure to wear a seatbelt, N.J.S.A. 39:3-76.2f.

C.J. moved to suppress the evidence obtained in the warrantless search of his car. The Family Part judge conducted a hearing on the motion, taking testimony from both Officers Carroll and Pavlick. C.J. chose not to testify, and did not call either of the passengers.

After considering the officers' testimony and the arguments of counsel, the judge denied the suppression motion. In his oral ruling, the judge determined that Officer Carroll had a lawful basis to conduct an investigatory stop of the car and to detain its occupants, that the use of the drug-sniffing canine was justified, and that the canine's reactions supported the ensuing search of the car's ashtray and the seizure of its contents.

Following the judge's decision on suppression, C.J. pled guilty to the disorderly persons offense, and the State, in turn, dismissed the motor vehicle summonses. C.J. preserved his right to vacate his plea if the suppression ruling were overturned on appeal. The court sentenced C.J. to a year of probation, with customary fines and penalties. The court permitted C.J. to retain his driving privileges to enable him to continue to work during the day and attend high school at night.

On appeal, C.J. argues that the stop of his car was illegal, that the police lacked a reasonable suspicion of criminal wrongdoing to justify his continued detention for more than an hour, that the facts did not authorize the use of a drug-sniffing dog, and that the ensuing search of his car's ashtray was unconstitutional. He also contends, for the first time on appeal, that the police engaged in wrongful "racial profiling" here, in stopping and detaining his car allegedly because he and his female passenger happened to be white and the front-seat passenger was black.

We agree with the State and the motion judge that Officer Carroll had a lawful basis to stop C.J.'s vehicle, at least based upon her observations, which the judge implicitly regarded as credible, that both C.J. and the front-seat passenger were not using seatbelts. Since the Legislature amended the traffic laws in 2000, the failure of a driver or a front-seat passenger to use a seatbelt is no longer a secondary offense, so that police officers may stop and ticket a motorist for such an observed violation without observing him or her commit any other offenses. See N.J.S.A. 39:3-76.2f; L. 1999, c. 422 (eff. May 1, 2000).

C.J. nonetheless argues that Officer Carroll overstepped her bounds here in stopping him for that minor reason, because Howell Township did not participate in the state-subsidized "click it or ticket" seatbelt law enforcement initiative in 2006. This argument is a red herring. The legal authority of a police officer to stop an unbelted driver does not hinge at all on whether the officer's municipality is or is not taking part in a statewide enforcement program. The motion judge correctly found that the investigatory stop here was lawful. See State v. Carty, 170 N.J. 632, 639-40, modified by, 174 N.J. 351 (2002).

We disagree, however, with the motion judge's finding that the police had sufficient grounds to deploy a K-9 unit to this routine traffic stop while continuing to detain C.J. and his companions for about an hour or more. The use of a drug-sniffing dog requires "reasonable and articulable suspicion" that illegal activity has occurred or is taking place that will justify such special probing by a canine. See State v. Elders, 386 N.J. Super. 208, 225, 228 (App. Div. 2006), rev'd in part, 192 N.J. 224 (2007); see also State v. Cancel, 256 N.J. Super. 430, 435 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993).

Here, the information known to Officer Carroll at the scene, objectively considered, fails to support a reasonable suspicion that the car was being used to transport narcotics or was being used for some other illicit purpose. C.J. and his two passengers acted cooperatively throughout the time that they were stopped. The record is bereft of any testimony that they were acting oddly, or appeared to be under the influence of narcotics, or smelled like marijuana.

The mere fact that C.J. and Ganthier had prior drug-related arrests, absent proof of any ensuing convictions, adds little to the equation. See, e.g., State v. Thomas, 110 N.J. 673, 683-84 (1988) (officer's knowledge of defendant's prior arrest did not support a reasonable suspicion justifying search and seizure). The fact that Officer Carroll recalled C.J.'s name from previous police briefings is vague and not particularly enlightening. Nor is it especially significant that C.J. made a lawful u-turn on Route 9 in the opposite direction of Freehold, given his unrefuted assertion that the threesome in the car were heading to the fast food establishment in the other direction before taking Ganthier to his court date in Freehold.

Although there was reasonable suspicion here to stop and ticket C.J. for not wearing a seatbelt, we cannot condone on these facts the extra step of bringing a K-9 unit to the scene. Our conclusion in that regard is bolstered by the relatively long period of time that C.J. was detained for what was, in essence, a seatbelt violation. See State v. Dickey, 152 N.J. 468, 477 (1998) (noting the federal constitutional obligation of police to act diligently during investigatory stops, and to not detain motorists for an unreasonable length of time); see also United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605, 615 (1985).

For all of these reasons, we invalidate the canine procedure utilized in this case and the ensuing search of this juvenile's automobile. We thus reverse the denial of the suppression motion, vacate the adjudication of guilt, and remand for any further appropriate proceedings.

 
Reversed and remanded.

Ganthier's court appearance was unrelated to this case.

The officer testified that she had also noticed several traffic summonses in the passenger compartment. Again, the details of those summonses are not in the record.

In fact, the record indicates that the vehicle had only failed inspection the previous day, May 4.

We need not comment on whether the red inspection sticker alone would have justified the lengthy motor vehicle stop involved in this case.

We decline to address C.J.'s claim, which was not raised below, that the police engaged in racial profiling in connection with this stop and in the ensuing detention and search. The claim, if it had any validity at all, should have been presented to the motion judge so that an appropriate record could be developed, and we discern no special reason here to depart from that usual requirement. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973).

The record reflects that Officer Carroll stopped C.J.'s car at about 9:05 a.m., but inexplicably did not begin running computer checks for over a half hour later at 9:42 a.m. The checks were completed at approximately 9:45 a.m., after which time Officer Carroll called in for K-9 assistance. Although the K-9 unit arrived quickly after being summoned, the dog-sniffing procedure and search did not finish until about 10:31 a.m., when the police log shows the entry of the officers' on-the-scene narrative.

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A-3497-06T4

RECORD IMPOUNDED

August 21, 2008