STATE OF NEW JERSEY VS. MELQUAN KENT AND MAURICE LOWERS (19-02-0173, CUMBERLAND COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5292-18T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MELQUAN KENT and
MAURICE LOWERS,
Defendants-Respondents.
______________________________
Submitted December 4, 2019 — Decided December 19, 2019
Before Judges Koblitz, Whipple, and Mawla.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Cumberland
County, Indictment No. 19-02-0173.
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for appellant (Stephen Christopher
Sayer, Assistant Prosecutor, of counsel and on the
brief).
Clarence J. Mattioli, Jr., attorney for respondent
Melquan Kent.
Joseph E. Krakora, Public Defender, attorney for
respondent Maurice Lowers (Dinaz Akhtar, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
On leave granted, the State appeals from a June 17, 2019 order granting
defendants Melquan Kent's and Maurice Lowers' motion to suppress a gun and
narcotics evidence seized pursuant to a motor vehicle stop. We affirm.
Millville City Police Detective Ryan Stroup was the sole witness to testify
at the suppression hearing. He testified that in June 2018, he witnessed Lowers
driving a car and Kent in the passenger seat. Stroup stated he knew Lowers had
a suspended license because he "check[ed] constantly, different subjects who
are regularly investigated." Therefore, he stopped the vehicle on suspicion of
driving with a suspended license. Stroup obtained Lowers' credentials and
returned to his vehicle to prepare a motor vehicle summons. Stroup checked
with dispatch to confirm Lowers' license was suspended and began to write the
motor vehicle summons.
In the meantime, other officers began to arrive at the scene. Prior to
completing the summons, a canine unit appeared and began a canine sniff of the
vehicle defendants occupied. Stroup testified he did not summon the canine unit
but paused writing the summons and exited his vehicle to assist the other officers
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and oversee the removal of defendants from the vehicle so officers could safely
complete the canine sniff. Stroup believed his assistance was necessary because
defendants were "very close associates of a very violent street gang . . . ."
When defendants exited the vehicle, both were patted down because
"Lowers [was] known to be in possession of firearms in the past." During the
pat-down, police observed the barrel of a handgun protruding from underneath
the passenger seat, where Kent was sitting. Defendants were arrested. After the
arrest, the canine sniff revealed the presence of narcotics in the vehicle. Police
recovered narcotics from Lowers' person.
Defendants argued the evidence was seized unlawfully because the canine
sniff was unrelated to, and prolonged, the motor vehicle stop. They argued
police lacked probable cause to compel them to exit the vehicle, pat them down,
and search the vehicle. The State argued the stop was not prolonged and it
duration was "immaterial because as soon as [the canine] alerted, that car is
going to be searched . . . [and] that gun is going to be located, so the discovery
of the gun is inevitable at that point."
The motion judge disagreed the gun was inevitably discoverable. He
stated:
That's not the point at all. The point is, why are they
being detained beyond the traffic stop? The officer
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testified there was no reason to arrest them. They had
no reason to hold them. There was no reason to detain.
And the problem is . . . that as soon as he stopped
writing the ticket, that was a delay in the issuance of
the summons and the delay was engendered by the sniff
itself and there was no articulable suspicion of current
criminal activity, even if he recognized . . . Lowers as
a gang-affiliated individual.
The State raises the following points on appeal:
THE RULING OF THE LOWER COURT SHOULD
BE DISTURBED IN THIS CASE, WHERE THAT
COURT ERRED IN GRANTING THE MOTION TO
SUPPRESS.
A. THE MOTOR VEHICLE STOP WAS
NOT "PROLONGED" BY THE OFFICER'S DE
MINIMIS MOMENTARY DIVERSION FROM
COMPLETING THE TRAFFIC TICKET IN THIS
CASE, AND THUS NO SEPARATE BASIS OF
REASONABLE SUSPICION WAS REQUIRED IN
ORDER TO VALIDATE THE SUBSEQUENT
DISCOVERY OF EVIDENCE OBSERVED IN PLAIN
VIEW FROM WITHIN THE MOTOR VEHICLE.
B. THE LOWER COURT ERRED IN
SUPPRESSING THE EVIDENCE DUE TO THE
DOCTRINE OF INEVITABLE DISCOVERY (NOT
RAISED BELOW).
C. THE INTERESTS OF JUSTICE ARE
NOT SERVED BY DISINCENTIVIZING OFFICERS
FROM BEING MINIMALLY INTRUSIVE DURING
TRAFFIC STOPS AND PRIORITIZING OFFICER
SAFETY (NOT RAISED BELOW).
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I.
"An appellate court reviewing a motion to suppress evidence in a criminal
case must uphold the factual findings underlying the trial court's decision,
provided that those findings are 'supported by sufficient credible evidence in the
record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven,
226 N.J. 20, 40 (2016)). It does so "because those findings 'are substantially
influenced by [an] opportunity to hear and see the witnesses and to have the
"feel" of the case, which a reviewing court cannot enjoy.'" State v. Gamble, 218
N.J. 412, 424-25 (2014) (alteration in original) (quoting State v. Johnson, 42
N.J. 146, 161 (1964)). "An appellate court should disregard those findings only
when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222
N.J. 249, 262 (2015) (citing Johnson, 42 N.J. at 162). However, legal
conclusions are reviewed de novo. State v. Gandhi, 201 N.J. 161, 176 (2010)
(citation omitted); see also State v. Watts, 223 N.J. 503, 516 (2015).
A.
The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution protect against unreasonable
searches and seizures. "A lawful roadside stop by a police officer constitutes a
seizure under both the Federal and New Jersey Constitutions." State v. Dunbar,
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229 N.J. 521, 532 (2017). "To be lawful, an automobile stop 'must be based on
reasonable and articulable suspicion that an offense, including a minor traffic
offense, has been or is being committed.'" State v. Bacome, 228 N.J. 94, 103
(2017) (quoting State v. Carty, 170 N.J. 632, 639-40 (2002)).
"[I]n those situations in which there is at least articulable and reasonable
suspicion that a motorist is unlicensed . . . stopping an automobile and detaining
the driver in order to check his driver's license" is reasonable under the Fourth
Amendment. Delaware v. Prouse, 440 U.S. 648, 663 (1979). During such a
stop, police officers are permitted to "inquire 'into matters unrelated to the
justification for the traffic stop.'" Dunbar, 229 N.J. at 533 (quoting Arizona v.
Johnson, 555 U.S. 323, 333 (2008)). However, "[a]uthority for the seizure . . .
ends when tasks tied to the traffic infraction are—or reasonably should have
been—completed." Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015).
"Lacking the same close connection to roadway safety as the ordinary
inquiries, a dog sniff is not fairly characterized as part of the officer's traffic
mission." Id. at 1615. Absent articulable, reasonable suspicion, the
unreasonable extension of a motor vehicle stop to conduct a canine sniff
constitutes an unreasonable seizure. Id. at 1614-15 (holding that the time of the
motor vehicle stop must be the time reasonable to complete "tasks tied to the
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traffic infraction."). The New Jersey Supreme Court adopted this federal
standard in Dunbar, 229 N.J. at 533-34.
The Dunbar Court held "an officer does not need reasonable suspicion
independent from the justification for a traffic stop . . . to conduct a canine
sniff[,]" but reasonable suspicion is required if the canine sniff administration
would "prolong[] a traffic stop beyond the time required to complete the stop's
mission." Id. at 550. The articulable, reasonable suspicion must be independent
from the underlying motor vehicle stop to be able to continue detention beyond
the stop's mission to administer a canine sniff. Id. at 536; see also State v.
Nelson, 237 N.J. 540, 554-55 (2019) (finding the officer had reasonable
suspicion to justify the delay based upon the defendant's nervous behavior,
conflicting explanations of his itinerary, a tip from ATF that someone fitting
defendant's description would be transporting controlled dangerous substances,
large bags in the cargo hold, the overwhelming odor of air freshener, and the
defendant's prior record of narcotics arrests).
A motor vehicle stop can become an investigatory Terry1 stop if
circumstances give rise to an articulable, reasonable suspicion. See Nelson, 237
N.J. at 552. However, to conduct an investigatory stop of a motor vehicle, there
1
Terry v. Ohio, 392 U.S. 1 (1968).
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must be some objective manifestation the suspect was, or is, involved in criminal
activity. State v. Arthur, 149 N.J. 1, 8 (1997). Independent, articulable, and
reasonable suspicion is necessary because the law "discourage[s] the police from
turning a routine traffic stop into a 'fishing expedition for criminal activity
unrelated to the stop.'" Hornberger v. Am. Broad. Co., 351 N.J. Super. 577, 614
(App. Div. 2002) (citation omitted).
Stroup had articulable, reasonable suspicion for stopping defendants;
namely, he knew the driver had a suspended license based on an inquiry he
conducted in the recent past. However, there was no articulable, reasonable
suspicion to conduct the canine sniff because there was no nexus between the
motor vehicle violation and drug activity, or any circumstances evidencing
possible drug use, or the presence of drugs. The canine unit's arrival on scene
the prolonged, delayed, and ultimately interrupted the mission of the motor
vehicle stop because Stroup ceased writing the summons, exited his vehicle, and
aided the administration of the canine sniff. The judge's findings in this regard
were not an abuse of discretion.
B.
Unlawfully obtained evidence is admissible if the State can clearly and
convincingly show the evidence would have been lawfully discovered
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independently of the unlawful means. State v. Maltese, 222 N.J. 525, 552
(2015). The State must prove
(1) proper, normal and specific investigatory
procedures would have been pursued in order to
complete the investigation of the case; (2) under all of
the surrounding relevant circumstances the pursuit of
the procedures would have inevitably resulted in the
discovery of the evidence; and (3) the discovery of the
evidence through the use of such procedures would
have occurred wholly independently of the discovery of
such evidence by unlawful means.
[State v. Sugar (III), 108 N.J. 151, 156-57 (1987)
(quoting State v. Sugar (II), 100 N.J. 214, 235 (1985)).]
To determine whether evidence from an illegal search warrants
suppression, courts focus on whether "the connection between the lawless
conduct of the police and the discovery of the challenged evidence has 'become
so attenuated as to dissipate the taint.'" Wong Sun v. U.S., 371 U.S. 471, 487
(quoting Nardone v. U.S., 308 U.S. 338, 341 (1939)). The United States
Supreme Court identified three factors courts should consider in that
determination: (1) the temporal proximity between the illegal conduct and the
challenged evidence; (2) the presence of intervening circumstances; and (3) the
flagrancy and purpose of the police misconduct. Brown v. Ill., 422 U.S. 590,
603-04 (1975); see also State v. Lee, 190 N.J. 270, 278 (2007).
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The New Jersey Supreme Court held, if an officer's initial inquiries reveal
the driver of a car does not have a valid license, an officer is justified in detaining
the driver for a period to issue the summons and has an objective reasonable
basis to detain the car and its occupants to assure the car is driven only by a
properly licensed driver. State v. Hickman, 335 N.J. Super. 623 (App. Div.
2000). Additionally, in instances of driving with a suspended license, "arresting
the driver is consistent with an officer's duty to make certain that the offender
cannot continue to drive. Even if other licensed drivers are present, the severity
of the penalties imposed . . . would ordinarily justify the arrest of a violator[,]"
so long as such arrest would not violate the fundamental constitutional rights
guaranteed to all citizens. State v. Piercer, 136 N.J. 184, 207 (1984).
Ordering a person out of a car during a traffic stop constitutes a seizure.
State v. Davis, 104 N.J. 490, 498 (1986). A court must balance the driver's
interest in privacy against the State's interest in protecting its police officers.
Pennsylvania v. Mimms, 434 U.S. 106 (1977). The State's interest in protecting
the safety of its officers far outweighs the driver's interests. Id. at 111. This
applies to passengers as well. State v. Conquest, 243 N.J. Super. 528 (1990).
In State v. Smith, the Court held, in some circumstances, with less than
reasonable suspicion, police may order passengers out of a lawfully stopped
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vehicle, if they believe the passengers are engaged in criminal activity and are
armed and dangerous. 134 N.J. 599, 617 (1994).
Here, police had articulable, reasonable suspicion Lowers' license was
suspended. However, the record lacks any evidence that Stroup intended to do
anything other than issue Lowers a motor vehicle summons. Indeed, the State
offered no testimony from Stroup of the steps he intended to take to assure
Lowers did not drive the car away from the scene after receiving the motor
vehicle violation. No evidence exists that Stroup intended to arrest Lowers for
the motor vehicle violation, or either Lowers or Kent for criminal conduct.
Defendants were removed solely because of the canine sniff, which was
unsupported by reasonable, articulable suspicion.
Moreover, we disagree with the State's argument that it was unable to
prove inevitable discovery because the motion judge restricted it from making
the argument. As we noted, the State raised the inevitable discovery argument
in summation. However, the judge properly found the argument did not apply
because the State failed to adduce the necessary testimony to support it. For
these reasons, the motion judge correctly concluded the weapon and narcotics
were not inevitably discoverable.
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The remainder of the State's arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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