STATE OF NEW JERSEY v. JOSEPH D. POWERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2630-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH D. POWERS,

Defendant-Appellant.

________________________________

October 20, 2011

Argued January 5, 2011 - Decided

Before Judges Fuentes, Gilroy and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No.

08-08-1166.

Terrance L. Turnbach argued the cause for

appellant (Starkey, Kelly, Bauer, Kenneally &

Cunningham, attorneys; Mr. Turnbach, on the

brief).

Frank Muroski, Deputy Attorney General, argued

the cause for respondent (Paula T. Dow, Attorney

General, attorney; Mr. Muroski, of counsel and

on the brief).

PER CURIAM

Defendant Joseph D. Powers pleaded guilty to second degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), and was sentenced to a term of five years and ordered to pay the mandatory fines and penalties. Defendant appeals from the order of the trial court denying his motion to suppress evidence seized by the police from a vehicle he was driving at the time of his arrest. We affirm.

We derive the following facts from the evidence presented at the evidentiary hearing conducted to adjudicate defendant's motion to suppress.

I

On January 21, 2008, at approximately 9:30 p.m., South Toms River Police Officer Michael Schneidt was parked on the corner of Route 166 and Crabbe Road in South Toms River, when he decided "to run the plates"1 on a brown Cadillac STS. The computer search revealed that the car's registered owner (not defendant) had an active outstanding warrant for a traffic summons. Schneidt pursued the Cadillac, eventually stopping the vehicle in the parking lot of the Music Academy on the corner of Route 166 and Water Street, just west of a 7-Eleven in Toms River. Of particular significance here, Schneidt testified that he had decided to stop the Cadillac on his own initiative.

When Schneidt approached the driver's side of the vehicle, he noticed there were two men in the car, a driver and a passenger, both of whom were unfamiliar to him. The driver produced a driver's license identifying himself as defendant Joseph Powers. Although defendant was not the registered owner of the car, he provided the vehicle's registration card and insurance information. The passenger did not have identification, but provided Schneidt his name and date of birth.

Shortly before Schneidt stopped defendant's car, Investigator Anthony Sgro and Sergeant Michael Cecchini of the Ocean County Prosecutor's Office, Special Operations Group, Narcotics Traffic Force, had been traveling east on Water Street in a black Crown Victoria, unmarked but equipped with lights and sirens. They were roaming in areas known to be centers of street-level narcotic activities. At this point, they noticed the brown Cadillac stopped at a traffic light heading northbound on Route 166.

Although he could not tell who was driving, Sgro recognized the Cadillac as one driven by defendant. Sgro knew defendant as a distributor of narcotics. He had arrested defendant "and his associates on several occasions over the past four years for CDS related offenses." According to Sgro, about a week before he had received information from a reliable informant that defendant was dealing a hundred grams of cocaine per week out of a brown Cadillac.

Because he did not want to lose sight of the Cadillac, but without intending to conduct a stop, Sgro continued on Water Street for a few hundred feet and made a U-turn. After completing the U-turn, Sgro saw that Schneidt had independently stopped the Cadillac. Sgro pulled into the parking lot and up to the back passenger-side door of Schneidt's patrol car. This area was a known location for narcotic activities. Sgro came out of his car and waited for Schneidt to finish speaking with defendant. Two other Ocean County Prosecutor's Office's investigators arrived a few minutes later.

Schneidt informed Sgro that defendant was the driver of the car; for his part, Sgro told Schneidt that defendant was a known distributor of narcotics. Schneidt told Sgro that he was going to check both occupants through his mobile data terminal for warrants and check the validity of defendant's driver's license and the vehicle's credentials.

While this was taking place, Investigator John Adams, a canine officer who had also arrived at the scene, ran a dog around the Cadillac to sniff for drugs. Adams had attended basic Canine Detection School for Narcotics, and received specific narcotics training. "Belle," the dog used in the "run around," had been traveling in the car with Adams. Belle was trained to detect drug odors. By the time of this incident, Adams and Belle had been working together for six years. Adams did not know defendant prior to the stop.

After walking Belle around the car, Adams told Sgro and Cecchini that the dog reacted to the trunk of defendant's car. Adams testified that Belle bit and scratched at the rear license plate bumper, a positive indication for the presence of narcotics. After putting Belle back in his truck, Adams approached defendant and asked him to exit the vehicle. Adams informed defendant that Belle had alerted him to the presence of narcotics in the vehicle. Defendant replied that he had no knowledge of any narcotics inside the vehicle.

Adams asked defendant to sign a consent to search form, while advising him that he had the right to refuse or to stop the search at any time. Defendant signed the form. Schneidt testified that it took him between five to six minutes to complete the computer search on defendant and the passenger. Sgro and Adams were still involved in the canine search by the time Schneidt finished the computer search. Adams testified that Belle had indicated the possible presence of narcotics approximately five minutes after he had arrived at the scene. After defendant and the passenger exited the car, Adams brought Belle back to defendant's car and continued to search the interior of the vehicle and the trunk.

The dog alerted to the presence of narcotics near a white sneaker in the trunk of the car. Adams manually searched the white sneaker while Sgro and Cecchini were standing with him. Adams found inside the sneaker "a white bag containing another clear plastic bag with several yellow zip lock bags containing a white powder." Based on his training and experience, Adams suspected that the white powder was cocaine. Subsequent tests confirmed that the powder was in fact cocaine. The investigators also seized about $500, a digital scale, Oxycodone pills, and a watch.2

Sergeant Cecchini arrested defendant and read him his rights under Miranda.3 According to Cecchini, defendant acknowledged having understood his rights, and voluntarily stated that the cocaine was his alone, and that the passenger had no knowledge of it and had nothing to do with it. At this point, Schneidt transported defendant to the South Toms River Police Department. Once there, Sergeant Cecchini decided defendant should be moved to Toms River. Defendant gave a taped statement at the Toms River Police Department admitting he was selling the drugs recovered from the vehicle.

II

The trial court denied defendant's motion to suppress finding that the

independent investigation by the K-9 unit did not result in any additional detention of the defendant, passenger, or vehicle beyond that required by Officer Schneidt to conduct the motor vehicle stop based on the active warrant. The time taken for the K-9 investigation was proper and reasonable and did not violate defendant's right against unreasonable detention to the extent that the defendant was required to remain on the scene until . . . Officer Schneidt completed his investigation.

The court also found that "[t]he use of the drug sniffing dog outside a vehicle lawfully detained in a public place is not a search." Relying on United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), and State v. Cancel, 256 N.J. Super. 430 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993), the court concluded that no suspicion was needed for the use of a drug sniffing dog during a lawful stop in a public place. The court noted that the dog's reaction upon searching defendant's vehicle gave the Special Operations Group investigators a reasonable basis to believe that the vehicle may contain illicit drugs. Predicated on this reasonable suspicion, the court found that the consent to search was valid and freely and voluntarily given by defendant.

Defendant now appeals raising the following argument:

THE ACTIONS OF THE SPECIAL OPERATIONS GROUP INEVESTIGATORS [SIC] IN THIS CASE CONTRAVENED ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION AND THE EVIDENCE AND FRUITS THEREOF MUST BE SUPPRESSED.

We reject this argument substantially for the reasons expressed by the trial court. The factual findings underlying the trial court's decision are supported by sufficient credible evidence in the record. State v. Mann, 203 N.J. 328, 336 (2010).

Ordinarily, the State is required to show a particularized suspicion to detain a person until a drug-sniffing dog is brought to the scene or to request a consent to search. State v. Baum, 393 N.J. Super. 275, 290 (App. Div.) aff d in part and modified in part, 199 N.J. 407 (2009); State v. Elders, 386 N.J. Super. 208, 228 (App. Div.), aff d in part and rev'd in part, 192 N.J. 224 (2007). Here, we acknowledge the absence of such a particularized suspicion before the dog was deployed. That being said, however, unlike Elders and Baum, the use of the dog here was proper because: (1) it occurred concurrent with the lawful motor vehicle stop; (2) the length of defendant's detention was not prolonged by the use of the dog; and (3) the consent to search was not obtained by means of a threat of calling in the dog. The limited intrusion associated with a dog sniffing the outside of a motor vehicle does not implicate the privacy concerns embodied in Article I, Paragraph 7 of our State Constitution. Cancel, supra, 256 N.J. Super. at 437.

Affirmed.

1 Using the patrol car's onboard computer, the officer cross-references the license plate number of the target car against a law enforcement data base to determine whether there are any outstanding warrants.

2 A few days before the stop, Sgro was told by an informant that he had given defendant a watch in exchange for cocaine. The informant was looking to cooperate with law enforcement officers to have pending charges downgraded. The informant also described the brown Cadillac that defendant was driving at the time of the stop. In a later statement, defendant identified the watch as the one the informant had given him.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).