STATE OF NEW JERSEY v. GARRY FLOYD

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0696-18T1

STATE OF NEW JERSEY,

           Plaintiff-Appellant,

v.

GARRY FLOYD,

           Defendant-Respondent.


                    Argued September 19, 2019 – Decided October 22, 2019

                    Before Judges Alvarez and DeAlmeida.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Middlesex County,
                    Indictment No. 17-10-1175.

                    David Michael Liston, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for appellant (Christopher L.C. Kuberiet, Acting
                    Middlesex County Prosecutor, attorney; David Michael
                    Liston, of counsel and on the brief).

                    Adam M. Lustberg argued the cause for respondent
                    (Lustberg Law Offices, LLC, attorneys; Adam M.
                    Lustberg, on the brief).
PER CURIAM

      On leave granted, the State appeals an August 27, 2018 Law Division

order suppressing drugs seized during a roadside stop from defendant Garry

Floyd's car. As a result of the seizure, defendant was indicted for narcotics

offenses.1 In light of State v. Witt,  223 N.J. 409 (2015), we now reverse the

judge's decision that the automobile exception to the warrant requirement did

not apply to this roadside stop.

      The facts are stipulated.  2 In July 2019, Woodbridge Township Police

Detective Jaremczak3 observed a narcotics sale, during which he identified the

seller as an individual he referred to only as S1.           Jaremczak conducted


1
  The five-count indictment charges defendant with third-degree possession of
heroin, a controlled dangerous substance (CDS),  N.J.S.A. 2C:35-10(a)(1); third-
degree possession of cocaine,  N.J.S.A. 2C:35-10(a)(1); first-degree possession
of cocaine with intent to distribute,  N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1);
second-degree possession of cocaine with intent to distribute within 500 feet of
public property,  N.J.S.A. 2C:35-7.1; and third-degree financial facilitation of
criminal activity,  N.J.S.A. 2C:21-25(a).
 2 R. 3:5-7(c) requires testimony to be taken "[i]f material facts are disputed . . ."
in a suppression motion. In this case, defendant alleged, and argues on appeal,
that the investigating officer had probable cause before the search was
conducted. He claims that the roadside motor vehicle stop was a ruse for a
warrantless seizure. Testimony and credibility findings would have assisted our
review.
3
  The briefs and the transcript of oral argument do not contain the full names of
any of the officers involved.
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surveillance at S1's home over the next few weeks and witnessed a number of

suspected drug transactions.     In August, a confidential informant whom

Jaremczak had found reliable in the past, told him that S1 was expecting a large

shipment of cocaine.

      Accordingly, Jaremczak continued to surveil S1's home over several days.

On August 18, 2016, Jaremczak saw a white Mercedes parked in front of S1's

residence. The driver went into the house for about twenty minutes, and talked

to S1 for another ten on the front lawn. The driver then returned to the Mercedes

and drove away.

      On August 19, Jaremczak and another officer, Bonilla, located S1's

vehicle in Perth Amboy. While observing S1's car, Jaremczak asked Bonilla to

look for the Mercedes, which Bonilla found nearby. The Mercedes travelled to

the location of S1's car, and then left the area in tandem with S1's vehicle.

Jaremczak followed them back to S1's residence, which S1 entered through the

front door.

      Meanwhile, the driver of the Mercedes walked down the driveway

alongside the house towards the rear, disappeared, returned, and threw

something in the trunk of the vehicle. Jaremczak did not see what the driver

threw into the trunk.    When the car pulled away, Jaremczak and Bonilla


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followed. During the next few miles, the officers witnessed the driver, later

identified as defendant, committing multiple motor vehicle violations, including

operating the Mercedes at seventy miles per hour in a fifty mile per hour zone,

passing other drivers at a high rate of speed from the left- and right-hand lanes,

and tailgating a tractor trailer.

      Since no testimony was taken, we do not know why a third officer, a

Detective Grogan, was asked to stop the motor vehicle while it was in Jaremczak

and Bonilla's view. Grogan, as instructed by Jaremczak, ran defendant's name

through his computer, ascertaining that defendant's license was suspended and

that he had a motor vehicle history of driving while suspended.          Also at

Jaremczak's instruction, Grogan arrested defendant. Defendant was driven to

the Woodbridge police headquarters while the officers remained at the scene.

      Grogan had been traveling with his drug detection dog Blade, whom he

brought out to examine the exterior of the Mercedes for narcotics. Blade alerted

Grogan to the presence of contraband in the trunk, which was then searched.

      Jaremczak seized two yellow ShopRite bags, one inside the other,

containing a large clear bag holding approximately 495 grams of cocaine, from

the trunk. A brown Gucci sunglasses case containing a small clear bag holding

0.9 grams of cocaine, and a small yellow bag holding 1.5 grams of powder


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heroin were taken from the far left and right areas of the trunk. Two of the three

pieces of mail in the trunk were addressed to defendant.

      Grogan discovered a small blue bag of 0.3 grams of marijuana in the rear

seat. Defendant and another person were listed as the owners of the Mercedes

on documents in the glove compartment. Police also seized three pieces of mail

addressed to defendant as well as a mailing box with defendant's name on it from

the rear passenger floor. The Mercedes was towed to the Woodbridge Police

Department impound yard, and complaints were filed against defendant.

      In his oral decision, the Law Division judge seemed to say that the

investigation before the sniff provided facts sufficient for an anticipatory

warrant. At a minimum, he said:

            there was at least probable cause developed to believe
            that there was drug dealing activity engaged in by S1 as
            a result of the initial arrest of the person who S1 sold
            drugs to back in July 2016, which led to an
            investigation and surveillance over the next couple of
            weeks of S1 . . . .

The judge also found that once the dog sniff was positive, the officers had an

obligation to obtain a search warrant. The car was secured and could readily

have been towed before the search, as was done after. Thus he opined that since

the officers had taken defendant into custody, and had probable cause to search



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the vehicle, they should have obtained a warrant, making the roadside search

illegal.

       On appeal, the State raises one issue for our consideration:

             THE    TRIAL    COURT     ERRONEOUSLY
             SUPPRESSED    EVIDENCE     FOUND    IN
             DEFENDANT'S CAR FOLLOWING A VALID AND
             UNFORESEEABLE MOTOR VEHICLE STOP AND
             A CANINE ALERT TO NARCOT[IC]S IN THE
             TRUNK OF DEFENDANT'S CAR.

       In light of Witt, and the law that has since developed, most notably, State

v. Rodriguez,  459 N.J. Super. 13 (App. Div. 2019), the search of defendant's

vehicle was proper. We examine this legal issue de novo. See State v. Gamble,

 218 N.J. 412, 425 (2014); State v. Rockford,  213 N.J. 424, 440 (2013); State v.

Gandhi,  201 N.J. 161, 176 (2010). Here, because the facts, incomplete as they

may be, were stipulated, we only address whether the judge erred as a matter of

law and do not consider whether his factual findings were supported by the

record.    See Rowe v. Mazel Thirty, LLC,  209 N.J. 35, 50 (2012) (citing

Gilhooley v. Cty. of Union,  164 N.J. 533, 545 (2000)).

       It bears noting that probable cause did not exist at the point the officer

saw defendant throw an unknown object into the back of the Mercedes. That

the confidential informant claimed a substantial amount of narcotics would be

delivered to S1 did not establish probable cause sufficient for the issuance of a

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warrant, much less an anticipatory warrant. No date, time, manner of delivery,

or other details were included in the tip. The confidential informant did not

mention defendant's name. Hence it was not until the sniff took place that

probable cause was developed.

      It is black-letter law that the officers could lawfully deploy the canine. A

sniff "does not transform an otherwise lawful seizure into a search that triggers

constitutional protections." State v. Dunbar,  229 N.J. 521, 538 (2017). "If an

officer has articulable reasonable suspicion independent from the reason for the

traffic stop that a suspect possesses narcotics, the officer may continue a

detention to administer a canine sniff." Id. at 540. So long as the sniff does not

unduly extend the stop, it is permissible.

      The officers lawfully stopped defendant because of his motor vehicle

infractions, but had only an uncorroborated hunch that defendant possessed

drugs. Once they stopped him, they were entitled to deploy the canine because

they had a reasonable, articulable suspicion — but not probable cause — that

defendant had narcotics in the trunk. It was not until the dog responded that

probable cause arose.

      Pursuant to Witt, officers may now conduct a warrantless search during a

roadside stop "in situations where: (1) the police have probable cause to believe


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the vehicle contains evidence of a criminal offense; and (2) the circumstances

giving rise to probable cause are unforeseeable and spontaneous." Rodriguez,

 459 N.J. Super. at 22 (citing Witt,  223 N.J. at 447-48). Applying the Witt

standard, this automobile search passes constitutional muster.

      The circumstances that gave rise to the sniff were "unforeseeable and

spontaneous." Had defendant not violated the motor vehicle laws, the officers

could not have stopped him. Although the officers suspected defendant of

involvement in narcotics trafficking with S1, on this record, they had no specific

information regarding his role or the contents of the plastic bag — they only had

information regarding S1 and a mere hunch about defendant.

      The item defendant placed in his trunk could have been innocuous. Not

all objects even a known drug dealer obtains from a suspected drug dealer are

going to be contraband. The bag could have contained anything. Although the

officers had information regarding the anticipated delivery of a substantial

amount of drugs to S1, they knew nothing about defendant's identity or his role

in the transaction until after his arrest. Furthermore, defendant was taking the

package from S1's home — not delivering it.

      The officers were unexpectedly able to lawfully stop defendant; once they

stopped defendant, the officers were entitled to conduct a canine sniff. Once


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they received a positive response to the sniff, Witt did not require them to obtain

a warrant and impound the vehicle before searching it. These circumstances are

not the type of "fake exigencies" discouraged by the Witt Court. Rodriguez

explains:

            Viewed in its proper context, the Court's reference in
            Witt to "fake exigencies" signifies that the police
            cannot rely upon a contrived justification to search an
            impounded vehicle without a warrant merely because
            the vehicle could have been searched earlier at the
            roadside. The whole tenor of the Witt opinion is to
            eliminate the need for police to establish "exigencies"
            at the roadside to proceed with a warrantless search.
            Instead, the Court readopted a bright-line rule, one that
            is predicated on the requirements of spontaneity and
            probable cause.

            [Rodriguez,  459 N.J. Super. at 24.]

      That defendant was in custody does not impact the analysis. "[T]he

automobile exception is not nullified" because a suspect is under arrest.

Rodriguez,  459 N.J. Super. at 22. Witt and Dunbar control, and make this

warrantless roadside search proper.

      Reversed and remanded. We do not retain jurisdiction.




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