STATE OF NEW JERSEY VS. YACHOR R. NAPPER AND BRANDON E. FIGARO (18-02-0233, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-4822-17T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
YACHOR R. NAPPER and
BRANDON E. FIGARO,
Defendants-Respondents.
___________________________
Submitted February 5, 2019 – Decided February 19, 2019
Before Judges Fisher and Geiger.
On appeal from interlocutory orders of Superior Court
of New Jersey, Law Division, Atlantic County,
Indictment No. 18-02-0233.
Damon G. Tyner, Atlantic County Prosecutor, attorney
for appellant (Dylan P. Thompson, Assistant
Prosecutor, of counsel and on the brief).
Mark A. Bailey, attorney for respondent Yachor R.
Napper.
Murray N. Sufrin, attorney for respondent Brandon E.
Figaro, joins in the brief of respondent Yachor R.
Napper.
PER CURIAM
Upon leave granted, the State appeals from two interlocutory Law
Division orders granting defendants Yachor R. Napper and Brandon E. Figaro's
motion to suppress evidence seized during a warrantless vehicle search, and
denying the State's motion for reconsideration. We reverse and remand.
At about 1:30 p.m. on November 2, 2016, Pleasantville Police Department
Officers Tell and VanSyckle were on patrol when they came upon a Hyundai
Sonata with an unclear temporary Delaware registration stopped in the lane of
travel impeding traffic while the occupants spoke to a woman on the sidewalk.
The officers initiated a traffic stop. Napper was the driver and Figaro was in the
front passenger seat. The officers knew Figaro had a history of weapons and
drug distribution offenses.
Officer VanSyckle approached the passenger side window and Officer
Tell approached the driver's side window. Officers VanSyckle and Tell
observed a bulge in the pocket in the front waist area of Napper's hooded
sweatshirt. They were concerned it could be a gun. Officer VanSyckle
acknowledged there was nothing specific about the shape of the bulge that would
indicate it was a gun other than its location in the waistband area. Officer
VanSyckle ordered Napper to turn off and exit the vehicle. Napper refused,
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becoming rude. Officer Tell conducted a pat down of Napper after he finally
exited the vehicle and discovered the bulge was a winter hat. Napper was asked
to remain outside the vehicle. Officer Tell requested Napper's driver's license
and vehicle registration.
Officer VanSyckle then observed a black object that resembled the
rubberized handle of a handgun in the map pouch on the backside of the
passenger seat. He handcuffed Napper and placed him on the ground. Officer
Tell removed Figaro from the vehicle for officer protection, handcuffed him,
and placed him on the ground pending an investigation. The object in the seat
pouch turned out to be a black metal hammer with a rubberized grip.
Officer VanSyckle contacted Delaware authorities regarding the vehicle's
temporary registration and learned the registration was for a Volkswagen Jetta.
He also learned the vehicle was not reported stolen. Due to the fictitious
registration, Officer VanSyckle requested a tow truck to transport the vehicle to
an impound lot.
Officer VanSyckle noticed a suspicious, "very visible" gap between the
air vents and the dashboard. The plastic panel around the vehicle's radio and
center air vents was loose and the seams were not properly aligned. Based on
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his training and experience, Officer VanSyckle believed the dashboard had been
tampered with.
At the time of the stop, Officer VanSyckle had approximately seven years
experience as a police officer. His training included an eight-hour class on
electronically operated hidden compartments within vehicles and a Drug
Enforcement Administration class on how to locate, access, and observe
indicators of hidden compartments in different vehicle makes and models. His
experience included a recent incident involving a vehicle with a temporary
Delaware registration that had an electronically operated hidden compartment
in the dashboard where the front passenger's side airbag had been removed.
Officer VanSyckle suspected the dashboard had a hidden compartment
containing a concealed controlled dangerous substance (CDS). Officer
VanSyckle believed the vehicle contained contraband in the dashboard. He
asked defendants for consent to search the vehicle; the record does not disclose
their response. The officers then requested a K-9 unit to conduct a canine drug
detection sniff test of the vehicle.
Defendants were allowed to leave the scene because the officers
determined there was no reason to keep them. By that point the stop "was well
within probably about forty-five minutes." The officers did not issue any
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summonses to defendants at the scene because Officer VanSyckle did not have
his ticket book. He subsequently mailed the motor vehicle summons.
The K-9 unit arrived approximately ten minutes after the officers' request.
By that point defendants had already left the scene. The K-9 unit gave a positive
indication for narcotics. A subsequent search of the vehicle revealed a defaced,
fully loaded Ruger .45 caliber handgun in a hidden dashboard compartment. The
search also uncovered a quantity of CDS, which later tested positive for heroin,
and a large quantity of drug distribution materials. Napper and Figaro were then
located and arrested on CDS and weapon charges.
A grand jury indicted defendants for second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a handgun
while committing a CDS offense, N.J.S.A. 2C:39-4.1(a); third-degree
possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(3); fourth-
degree prohibited weapons and devices, N.J.S.A. 2C:39-3(d); third-degree
possession of CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7;
and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). On February 13,
2018, a superseding indictment was issued.1
1
The superseding indictment included additional weapon and CDS charges
against Napper resulting from a subsequent traffic stop. The vehicle search
leading to the additional charges is not at issue in this appeal.
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Napper moved to suppress the physical evidence seized during the
warrantless vehicle search. Figaro joined in the motion. Defendants argued by
waiting for the K-9 unit to arrive at the scene, the officers prolonged the stop
beyond the reasonable time required to complete the traffic stop's mission, and
that the officers should not have released defendants from the scene. Defendants
also contended the automobile exception to the warrant requirement does not
apply, because the search of the vehicle after defendants were released from the
scene cannot be considered unforeseeable or spontaneous. Defendants further
argued the search did not fall under the exigent circumstances exception to the
warrant requirement because an officer could have stayed with the vehicle until
a warrant was issued or the tow truck arrived.
The trial court conducted a two-day suppression hearing. Officer
VanSyckle was the only witness who testified as to this vehicle search. The trial
court issued a subsequent order and oral and written decisions suppressing the
evidence seized from the vehicle. The motion judge found the officers'
justification for releasing defendants from the scene before the canine sniff was
conducted "must fail because they had probable cause to call for a canine unit."
Noting the officers had a reason to keep the defendants at the scene but decided
not to, the court stated:
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Once the officers informed the defendants that the
vehicle was going to be impounded, one of the four
officers on the scene should have called for a search
warrant instead of waiting for the canine unit to arrive.
By waiting for the canine unit, the officers prolonged
the stop beyond a reasonable time required to complete
the stop[']s mission.
The judge concluded the officers should have kept defendants at the scene and
sought a search warrant upon requesting a tow truck to impound the vehicle.
The judge did not make any credibility findings.
The State moved for reconsideration, arguing the holding in State v.
Dunbar, 229 N.J. 521 (2017), concerning a traffic stop extending beyond a
reasonable time, applies only to persons detained, not to vehicles. Relying on
State v. Witt, 223 N.J. 409 (2015) and State v. Alston, 88 N.J. 211 (1981), the
State argued because the officers had probable cause to believe the vehicle
contained contraband, the search of the vehicle was permitted under the
automobile exception to the warrant requirement. Emphasizing that the car is
accessible to third persons who might destroy evidence because "the car is
readily movable until such time as it is seized, removed from the scene and
securely impounded by police," the State contends "when there is probable cause
to conduct an immediate search at the scene of the stop, the police are not
required to delay the search by seizing and impounding the vehicle pending
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review of that probable cause determination by a magistrate." Alston, 88 N.J.
at 234-35.
The motion judge denied reconsideration, but the record on appeal does
not reflect if the judge issued an oral or written decision stating the basis for her
decision. See R. 2:5-6(c) (requiring the motion judge to submit "a written
statement of reasons for the disposition" upon the filing of a motion for
interlocutory appeal if the judge had not previously "filed a written statement of
reasons or if no verbatim record was made of any oral statement of reasons");
see also R.1:6-2(f).
We granted the State's motion for leave to appeal from the two orders.
The State raises the following points:
POINT I
THE TRIAL COURT ERRED IN DECIDING THE
SEARCH OF THE VEHICLE WAS UNLAWFUL
BECAUSE THE SEARCH OF THE OFFICERS
PROLONGED THE TRAFFIC STOP.
POINT II
THE SEARCH OF THE VEHICLE WAS LAWFUL
UNDER THE AUTOMOBILE EXCEPTION TO THE
WARRANT REQUIREMENT.
POINT III
THE SEARCH OF THE VEHICLE WAS LAWFUL
UNDER THE DESTRUCTION OF EVIDENCE
[EXIGENT] CIRCUMSTANCE EXCEPTION TO
THE WARRANT REQUIREMENT.
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"Appellate review of a motion judge's factual findings in a suppression
hearing is highly deferential." State v. Gonzales, 227 N.J. 77, 101 (2016) (citing
State v. Hubbard, 222 N.J. 249, 262 (2015)). "[A]n appellate court reviewing a
motion to suppress must uphold the factual findings underlying the trial court's
decision so long as those findings are supported by sufficient credible evidence
in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (alteration in
original) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings
warrant particular deference when they are 'substantially influenced by [the trial
court's] opportunity to hear and see the witnesses and to have the "feel" of the
case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original)
(quoting Robinson, 200 N.J. at 15). "Thus, appellate courts should reverse only
when the trial court's determination is 'so clearly mistaken that the interests of
justice demand intervention and correction.'" State v. Gamble, 218 N.J. 412,
425 (2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)).
"A trial court's interpretation of the law, however, and the consequences
that flow from established facts are not entitled to any special deference.
Therefore, a trial court's legal conclusions are reviewed de novo." Ibid. (citing
State v. Gandhi, 201 N.J. 161, 176 (2010)).
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A traffic "stop by a police officer constitutes a seizure under both the
Federal and New Jersey Constitutions." Dunbar, 229 N.J. at 532 (citing Arizona
v. Johnson, 555 U.S. 323, 333 (2009); State v. Scriven, 226 N.J. 20, 33 (2016)).
A police officer must have reasonable suspicion that someone in the car is
committing a motor vehicle violation or a criminal or disorderly persons offense
in order to justify a traffic stop. Dunbar, 229 N.J. at 533; Scriven, 226 N.J. at
33.
"During an otherwise lawful traffic stop, a police officer may 'inquire into
matters unrelated to the justification for the traffic stop.'" Dunbar, 229 N.J. at
533 (quoting Johnson, 555 U.S. at 333). This includes verifying the driver's
license, registration, proof of insurance, and whether the driver has any
outstanding warrants. Ibid. If "during the initial stop or further inquiries, 'the
circumstances give rise to suspicions unrelated to the traffic offense , an officer
may broaden [the] inquiry and satisfy those suspicions.'" Ibid. (alteration in
original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). The stop may
not be unreasonably prolonged "absent the reasonable suspicion ordinarily
demanded to justify detaining an individual." Id. at 533-34 (quoting Rodriguez
v. United States, 575 U.S. ___, 135 S. Ct. 1609, 1615 (2015)); see also Dickey,
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152 N.J. at 476-79 (noting detention can become unlawful if longer than needed
to diligently investigate suspicions).
However, "an officer does not need reasonable suspicion independent
from the justification for a traffic stop in order to conduct a canine sniff."
Dunbar, 229 N.J. at 540. Nevertheless, "an officer may not conduct a canine
sniff in a manner that prolongs a traffic stop beyond the time required to
complete the stop's mission, unless he possesses reasonable and articulable
suspicion to do so." Ibid. (citing Rodriguez, 135 S.Ct. at 1616-17). Absent such
suspicion, an officer may not prolong the stop.
In Witt, our Supreme Court abandoned the "pure exigent-circumstances
requirement" it had added to the constitutional standard to justify an automobile
search and returned to the standard set forth in Alston. 223 N.J. at 447. The
Court held a warrantless search of an automobile is authorized under the
automobile exception "when the police have probable cause to believe that the
vehicle contains contraband or evidence of an offense and the circumstances
giving rise to probable cause are unforeseeable and spontaneous." Ibid. (citing
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Alston, 88 N.J. at 233). 2 "However, when vehicles are towed and impounded,
absent some exigency, a warrant must be secured." Id. at 450.
Here, the traffic stop was justified because the police officers had a
reasonable suspicion the driver was committing a motor vehicle violation. The
police were permitted to ask the driver to produce his driver's license, proof of
insurance, and vehicle registration. The officers were justified in removing the
driver and passenger after observing what may have been a weapon under the
driver's sweatshirt and what appeared to be the handle of a handgun protruding
from a map pocket. Further investigation revealed the out-of-state temporary
registration for the vehicle was expired and pertained to a different vehicle. This
allowed the officers to impound the vehicle.
The police officers did not need additional justification to conduct a
canine drug sniff test. The K-9 unit alerted for narcotics in the car. In addition,
Officer VanSyckle observed the plastic around the vehicle's radio and center air
vents was loose and the seams were not properly aligned and a small gap in the
glove box. Based on his training and experience, Officer VanSyckle reasonably
believed the dashboard could contain narcotics. Viewed through the prism of
2
The holding in Witt was given prospective application from the date of the
opinion. Id. at 450. Witt was decided prior to the November 2, 2016
investigatory stop in this case and, therefore, applies to this case.
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the officers' experience and knowledge of Figaro's criminal history, it was
entirely appropriate for the police officers to reasonably suspect the vehicle
contained contraband.
In order to establish probable cause to conduct a search, the State must
show from the totality of the circumstances there is "a fair probability that
contraband or evidence of a crime will be found in a particular place." State v.
Chippero, 201 N.J. 14, 28 (2009) (quoting United States v. Jones, 994 F.2d 1051,
1056 (3d Cir. 1993)). That standard was clearly met here. The police officers
had probable cause to believe the vehicle contained CDS.
By any measure, "the circumstances giving rise to probable cause [were]
unforeseeable and spontaneous." Witt, 223 N.J. at 447 (citing Alston, 88 N.J.
at 233). The police were not looking for either defendant or the vehicle they
occupied at the time the stop was made. Therefore, the warrantless vehicle
search was fully justified by the automobile exception reestablished in Witt. The
fact the police officers requested a tow truck to impound the vehicle does not
change the result. The search was conducted roadside before the vehicle was
towed and impounded.
The release of the defendants from the scene did not obviate the
justification for the search of the vehicle. At that point the officers did not have
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grounds to arrest defendants and were unable to issue traffic summonses because
they lacked a ticket book. We further conclude the additional time expended to
determine if the Delaware temporary registration was valid and to conduct the
canine drug sniff of the vehicle was reasonable given the unfolding events
during the roadside stop. Therefore, the warrantless search was permissible.
For these reasons, the trial court erred by suppressing the physical
evidence seized from the vehicle and by denying reconsideration. We reverse
the March 13, 2018 and April 9, 2018 orders and remand this matter for trial.
We do not retain jurisdiction.
Reversed and remanded.
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