STATE OF NEW JERSEY v. VINCENT L. DIXON
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0396-19T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
VINCENT L. DIXON,
Defendant-Respondent.
____________________________
Submitted March 16, 2020 – Decided April 30, 2020
Before Judges Sumners and Natali.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Middlesex County,
Indictment No. 18-05-0840.
Gurbir S. Grewal, Attorney General, attorney for
appellant (Daniel Ian Bornstein, Assistant Attorney
General, of counsel and on the briefs).
Joseph E. Krakora, Public Defender, attorney for
respondent (Ravi P. Shah, Assistant Deputy Public
Defender, on the brief).
PER CURIAM
On leave granted, the State requests we overturn the trial court's order to
suppress drugs found in a warrantless search of defendant's car following a
roadside stop. Before us, the State makes the single-point argument:
THE TRIAL JUDGE COMMITTED LEGAL ERROR
IN SUPPRESSING EVIDENCE THAT WAS
LAWFULLY SEIZED DURING A
CONSTITUTIONALLY PERMISSIBLE SEARCH
UNDER THE AUTOMOBILE EXCEPTION TO THE
SEARCH WARRANT REQUIREMENT.
We conclude the automobile exception to a warrant requirement did not apply
to the warrantless search. A warrant to search defendant's car was necessary
under State v. Witt, 223 N.J. 409 (2105), despite a drug-sniffing canine's "hit"
that drugs were in the car. The search for drugs was not unforeseeable and
spontaneous because defendant was under police surveillance for distribution of
drugs when his car was stopped, and the police had reason to believe drugs were
in the car. We therefore affirm.
I
The suppression hearing revealed the following uncontroverted testimony
of the events culminating in the warrantless search of defendant's car. On
November 29, 2017, acting on a tip from a reliable confidential informant,
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Edison Police Detective Michael Carullo along with fellow Detective Sorber 1
conducted surveillance of an Edison industrial park where they suspected drugs
were being sold to warehouse employees. The detectives observed defendant:
drive up to the warehouse, pick up a man wearing a warehouse uniform who had
been pacing outside the warehouse for several minutes prior to defendant's
arrival, and drive him for a short three-minute ride before dropping him back off
at the warehouse. The detectives remained at their surveillance location during
the pick-up and drop-off.
Combined with the informant's tip and his training and experience with
drug-related activity, Carullo believed the observed rendezvous was a drug sale.
To confirm his suspicion, Carullo radioed fellow Edison police officers to stop
defendant's car, then he and Sorber joined the stop moments thereafter. Carullo's
subsequent questioning of defendant, who had been removed from the vehicle
and handcuffed by the other officers, led him to conclude defendant lied when
claiming to have stopped at the warehouse to apply for a job and then gave
someone a ride to a convenience store to buy cigarettes. 2 After defendant
1
Detective Sorber's first name is not disclosed in the record.
2
Carullo testified defendant never got out of the car, and being familiar with
the area's traffic conditions, he was certain defendant's short three-minute drive
was not enough time to go to a nearby store to make a purchase.
A-0396-19T2
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refused to give consent to search his car, a call was made to have a drug-sniffing
canine come to the scene.
About twenty-minutes after the stop was initiated, the canine arrived and
made a positive hit that drugs were in the car. Apparently, uncertain whether a
warrantless search of the car should be effectuated but acknowledging it would
have been easy to apply for a search warrant, Carullo revealed he sought
direction from the Middlesex Prosecutor's Office. After an Assistant Prosecutor
on duty advised him there was no need for a warrant, a search of the car
uncovered crack cocaine and heroin, plus Xanax and Clonazepam pills, which
led to defendant's indictment for various drug offenses.
The motion judge granted defendant's motion to suppress the drugs. In
his oral decision, the judge relied upon the reasoning articulated in State v.
Nelson, 237 N.J. 540 (2019) and State v. Dunbar, 229 N.J. 521 (2017), which
the judge recognized did not specifically address the automobile exception to
warrantless searches. The judge determined the State had reasonable articulable
suspicion to stop defendant's vehicle based on Carullo's "very credible"
testimony that defendant sold drugs to the warehouse employee he picked up
and dropped back off at the warehouse. Nevertheless, the judge rejected the
State's claim that the warrantless search fell within the automobile exception.
A-0396-19T2
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The judge reasoned "the whole purpose of the stop was to investigate . . .
[suspected] drug activity," thus probable cause that there were drugs in the car
was "not spontaneous or unforeseeable, it was rather predictable based on the
[canine's] sniff." The judge further found the search problematic because there
were no exigent circumstances demonstrating "some identifiable risk either to
the safety to the officers, or to the destruction of evidence." Thus, a search
warrant should have been sought, which "more likely than not would have been
obtained."
II
In its merits brief, the State initially contends the motion judge's ruling
was procedurally flawed because defendant only challenged the constitutionality
of the roadside stop and detention, and the judge "should not have even
considered the constitutionality of the search . . . ." The State thus posits "any
argument pertaining to the constitutionality of the search was not properly
preserved in [defendant's] motion and should be waived." Citing Witt, 223 N.J.
at 418-19, the State contends had it been aware the actual search was under
scrutiny, it would have been on notice to create an adequate record on the issue
and argued the discovery of the drugs would have been inevitable. We discern
no merit to this contention.
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The State's reliance on Witt is misplaced. There, the Court rejected the
defendant's challenge to a roadside stop because the defendant raised the
contention for the first time on appeal and "the State was deprived of the
opportunity to establish a record that might have resolved the issue through a
few questions to" the investigating police officer. Id. at 419. Underscoring
without a trial record, the Court acknowledged the long-standing principle that
appellate review is impeded under such circumstances. Ibid. (citing State v.
Robinson, 200 N.J. 1, 20 (2009)).
Here, despite defendant's failure to specifically raise the issue of the
search in its motion to suppress before the court, the motion record addresses
the issue. The State, being fully aware of its burden to establish the warrantless
search and seizure was justified under the circumstances, State v. Mann, 203 N.J. 328, 337-38 (2010), through Carullo's testimony and its argument – without
the judge's inquiry – contended the search was constitutional under the
automobile exception. After the State asserted there was reasonable suspicion
to effectuate a motor vehicle stop, Carullo's "first hurdle," it argued the "next
hurdle" was whether the automobile exception applied to conduct a warrantless
search. The State maintained after consent to search was not obtained, the
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canine sniff led to a hit there were drugs in a car, where upon an Assistant
Prosecutor counseled Carullo a warrant was not necessary to search the car.
Further, during the suppression hearing, the State cited case law – in
particular Witt – to support its position, and at no point before or after the judge's
oral decision, did it indicate it was not on notice to present testimony or be
prepared to address the automobile search issue. Simply put, the State addressed
all legitimate factual and legal issues arising from its warrantless search. It
cannot now claim foul by the motion judge on appeal.
III
Turning to the substantive issue of this appeal, the State contends, under
Witt, the warrantless search of defendant's car was a proper application of the
automobile exception. Based upon our interpretation of Witt, and its application
that has since developed, most notably, State v. Rodriguez, 459 N.J. Super. 13
(App. Div. 2019), we disagree.
Because the facts are not in dispute and the State argues the motion judge
misapplied the law, we examine this legal issue de novo. See State v. Gamble,
218 N.J. 412, 425 (2014). Hence, we need not consider whether the judge's
factual findings were supported by the record. See Rowe v. Mazel Thirty, LLC,
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209 N.J. 35, 50 (2012) (citing Gilhooley v. Cty. of Union, 164 N.J. 533, 545
(2000)).
The legal issue here is whether the automobile exception to the Fourth
Amendment's warrant requirement applies. It is well-established that the Fourth
Amendment of the United States Constitution and Article I, Paragraph 7 of the
New Jersey Constitution, require police to obtain warrants before making
searches and seizures. Yet, judicially recognized exceptions to the warrant
requirement allow the State to show that a warrantless search was justified.
State v. Pineiro, 181 N.J. 13, 19 (2004). One such exception is the automobile
exception.
In Witt, the Court "announced . . . a sharp departure from a more narrow
construction of the automobile exception." Rodriguez, 459 N.J. Super. at 21.
As Rodriguez explains, the Witt decision observed the "multi-factor exigent
circumstances test" of prior case law was "difficult to apply with consistency,
particularly for law enforcement officers on patrol, and placed upon them
'unrealistic and impracticable burdens.'" Ibid. (citing Witt, 223 N.J. at 414-15).
The Witt Court restated the test to authorize automobile searches where "(1) the
police have probable cause to believe the vehicle contains evidence of a criminal
offense; and (2) the circumstances giving rise to probable cause are
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unforeseeable and spontaneous." Id. at 22 (citing Witt, 223 N.J. at 447-48).
Thus, Witt readopted a bright-line rule "affording police officers at the scene
the discretion to choose between searching the vehicle immediately if they
spontaneously have probable cause to do so, or to have the vehicle removed and
impounded and seek a search warrant later." Id. at 24 (emphasis added).
Applying the Witt test, this warrantless automobile search does not pass
constitutional muster. We start by recognizing there was reasonable suspicion
for an investigatory stop of defendant's car based on the confidential informant's
tip and defendant's picking up the waiting warehouse employee and dropping
him back off three-minutes later. As did the motion judge, we take no issue with
Carullo's assessment, based upon his experience and training, that drugs had just
been sold. After defendant's consent to search the car was not obtained, Carullo
lawfully requested the trained canine, whose hit indicated drugs were in the car,
thereby establishing probable cause. See Dunbar, 229 N.J. at 538 (holding a
canine sniff "does not transform an otherwise lawful seizure into a search that
triggers constitutional protections"). The warrantless search then ensued.
The circumstances, however, giving rise to probable cause to search
defendant's car were not "unforeseeable and spontaneous" as required by Witt
to validate a warrantless search. Defendant's car was pulled over by officers
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after Carullo radioed a description of defendant and his car with the direction to
stop him because they believed he had just sold drugs. This investigatory stop
was based on surveillance of the warehouse that was initiated by the confidential
informant's tip. Stopping defendant's car was not based on some traffic
violation, which then led to probable cause to conduct a warrantless search. See
Rodriguez, 459 N.J. Super. at 15, 25-26. The pursuit, car stop, and canine sniff
were solely based on Carullo and Sorber's beliefs that defendant had drugs in
his car. 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 car. A search warrant should have been sought, and it is not
speculative to state, it would have been granted under these circumstances.
The State's reliance on State v. Gonzales, 227 N.J. 77 (2016) is misplaced.
The State argues Gonzales applied the automobile exception where the police
conducted a warrantless search after a lengthy wiretap investigation led them to
suspect the defendant had drugs in his car intended to be sold. 227 N.J. at 82-
86. In Gonzales, the automobile exception was applied in combination with the
plain view exception because the drugs were observed in the car. Id. 104. The
Court recognized:
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In Witt, . . . we specifically noted that, in the case of a
car suspected of containing drugs parked in a driveway,
"if the circumstances giving rise to probable cause were
foreseeable and not spontaneous, the warrant
requirement applies." 223 N.J. at 448 . . . . In short,
when the police have sufficient time to secure a
warrant, they must do so.
[Gonzales, 227 N.J. at 104-05.]
The record here indicates insufficient time was not the reason a search
warrant was not obtained. Carullo admitted he could have easily obtained a
search warrant but deferred to the Assistant Prosecutor's guidance. Based on
our analysis, he was wrongly advised he did not need to secure a search warrant.
Under Witt and Rodriguez, the warrantless roadside search of defendant's car
was unconstitutional.
Affirmed.
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