State v. Mark Dunbar (077839) (Monmouth and Statewide

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Mark Dunbar (A-94-15) (077839)
Argued April 24, 2017 -- Decided July 10, 2017
FERNANDEZ-VINA, J., writing for the Court.
In this appeal, the Court considers the appropriate standard for police officers to conduct a canine sniff for
the detection of narcotics. In particular, the Court determines whether police require reasonable suspicion of a drug
offense to effect a canine sniff during a motor vehicle stop.
On May 3, 2013, around 10:20 p.m., Bradley Beach Police Officer Michael Tardio observed a green Ford
Focus parked in one of QuickChek’s handicapped-reserved spaces. The car’s New Jersey license plate did not bear
a handicapped designation, nor was there a handicapped designation placard on display in the car’s interior.
Officer Tardio recognized the car as that of defendant Mark Dunbar. On May 2, 2013, the Bradley Beach
Police received information from the Manasquan Police Department that a female reported she “was getting her
drugs from Mark Dunbar.” The anonymous informant also reported that Dunbar used a green Ford Focus, with a
New Jersey license plate matching that of the car parked at QuickChek, to distribute narcotics.
Officer Tardio pulled into the QuickChek parking lot to initiate a motor vehicle stop, exited his patrol car,
and approached the suspect vehicle. While Officer Tardio spoke with Dunbar, Officer Major arrived on the scene as
backup. Officer Major was accompanied by a narcotics canine. Upon Officer Major’s arrival, Officer Tardio
instructed Dunbar to exit the vehicle and walk toward Officer Major while he spoke with Lisa Parker. Then, Lisa’s
sister, Deborah Parker, exited the QuickChek. At that time, Officer Tardio confirmed that all three individuals
arrived at the QuickChek together, connecting them to Dunbar’s vehicle.
After identifying all three individuals, Officer Tardio “immediately” contacted dispatch to request a
warrant search; the search returned an outstanding warrant for Deborah Parker. Officer Tardio requested the
presence of a female officer to arrest Deborah Parker. Officer Tardio testified that it “maybe” took about two
minutes for the female officer to arrive. In the meantime, Officer Tardio spoke with Dunbar and advised him of the
recent allegations that he was selling drugs. Dunbar denied any wrongdoing. Officer Tardio informed Dunbar that
Officer Major and his narcotics canine would conduct a sniff around the vehicle’s exterior. The canine positively
indicated the presence of narcotics. The record is unclear as to whether the canine sniff took place while the officers
were waiting for the arrival of the female officer from Asbury Park or after she arrived.
Officer Tardio instructed Dunbar that he could consent to a search of his vehicle or have his car impounded
pending a search warrant. Dunbar initially refused consent but changed his mind when a tow truck arrived. Officer
Tardio read Dunbar his rights. With Dunbar’s permission, the officers searched the vehicle’s trunk, from which they
recovered Xanax, oxycodone, and heroin. The officers arrested Dunbar and Deborah Parker. A Monmouth County
grand jury indicted Dunbar for three counts of third-degree possession of controlled dangerous substances.
Prior to trial, Dunbar moved to suppress the drugs. The court granted Dunbar’s motion, holding that the
officers did not have reasonable suspicion that Dunbar was engaged in a drug transaction in his vehicle in the
QuickChek parking lot at that time and therefore could not perform a canine sniff. Furthermore, the court held that,
based on the number of officers and the threat of towing his vehicle, Dunbar did not voluntarily provide consent.
Ten days later, the State moved for reconsideration in light of the then-recent United States Supreme Court
decision, Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609 (2015). The trial court denied the motion. The
court explained, “[t]he State has not met its burden of proof that the time for tasks necessitated by [Dunbar’s] traffic
violation included the time of the dog sniff.” The court entered an order denying reconsideration.
1
Prior to trial, the Appellate Division affirmed the suppression of the drugs. Citing prior Appellate Division
cases, the court posited that New Jersey’s standard for canine sniffs is reasonable suspicion. The court concluded
that the officers did not harbor reasonable suspicion that Dunbar or the Parker sisters were engaged in drug activity
and found that the officers lacked reasonable suspicion to effectuate the canine sniff. The panel also affirmed the
trial court’s holding on consent.
The Court granted the State’s motion for leave to appeal. 226 N.J. 543 (2016).
HELD: The Court adopts the federal standard barring unnecessary delays for the purpose of canine sniffs. Officers do
not need reasonable suspicion of a drug offense provided that the canine sniff does not prolong the stop beyond the time
required to complete the stop’s mission.
1. The Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution
equally guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” A lawful roadside stop by a police officer constitutes a seizure under both
Constitutions. To justify such a seizure, a police officer must have a reasonable and articulable suspicion that the driver
of a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal or disorderly persons offense.
During an otherwise lawful traffic stop, a police officer may inquire into matters unrelated to the justification for the
traffic stop. An officer’s ability to pursue incidental inquiries, however, is not without limitations. Specifically, the
incidental checks may not be performed “in a way that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual.” Rodriguez, supra, 135 S. Ct. at 1615. (pp. 13-16)
2. In United States v. Place, the United States Supreme Court held that a canine sniff does not constitute a “search”
within the meaning of the Fourth Amendment. 462 U.S. 696, 706-07 (1983). The Court reasoned that a canine sniff
is so limited in the manner of investigation and in the noncontraband items it reveals that it is “much less intrusive
than a typical search.” Id. at 707. In Illinois v. Caballes, 543 U.S. 405, 408 (2005), the Court held that “a dog sniff
would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable
manner, unless the dog sniff itself infringed [upon the defendant’s] constitutionally protected interest in privacy.” In
Rodriguez, supra, the Court reaffirmed its holding that, although an officer “may conduct certain unrelated checks
during an otherwise lawful traffic stop,” the officer “may not do so in a way that prolongs the stop, absent the
reasonable suspicion ordinarily demanded to justify detaining an individual.” 135 S. Ct. at 1615. The federal
standard does not require particularized reasonable suspicion to conduct a canine sniff during the course of a routine
traffic stop. But if the canine sniff extends the traffic stop beyond the time reasonably required to complete the
traffic stop’s purpose, the sniff is unlawful absent independent reasonable suspicion of criminal activity. (pp. 16-20)
3. The Appellate Division has echoed some of the federal approach regarding canine sniffs but has departed from
the federal standard by requiring reasonable and articulable suspicion to justify canine sniffs. (pp. 20-22)
4. The Court now adopts the federal standard for canine sniffs. Accordingly, an officer does not need reasonable
suspicion independent from the justification for a traffic stop in order to conduct a canine sniff but 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. In other words, in the absence of such suspicion,
an officer may not add time to the stop. (pp. 23-25)
5. Applying this legal standard to Dunbar’s appeal, two issues arise: whether the canine sniff prolonged Officer
Tardio’s traffic stop beyond the time reasonably required to address Dunbar’s parking infraction, and, if so, whether
this delay was justified by independent reasonable suspicion that Dunbar possessed drugs at that time. The record
does not provide sufficient information. The Court expresses no opinion as to whether the canine sniff prolonged
the traffic stop or whether the totality of the circumstances generated reasonable suspicion that Dunbar possessed
drugs at the time of the stop, leaving those determinations to the trial court on remand. (pp. 26-27)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for proceedings
consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON,
and TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-94 September Term 2015
077839
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MARK DUNBAR,
Defendant-Respondent.
Argued April 24, 2017 – Decided July 10, 2017
On appeal from the Superior Court, Appellate
Division.
Frank Muroski, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General, attorney;
Frank Muroski, of counsel and on the
briefs).
Stefan Van Jura, Deputy Public Defender II,
argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney; Stefan
Van Jura, of counsel and on the briefs).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this appeal, we consider the appropriate standard for
police officers to conduct a canine sniff for the detection of
narcotics. In particular, we are called upon to determine
whether police require reasonable suspicion of a drug offense to
effect a canine sniff during a motor vehicle stop. We conclude
that officers do not need such reasonable suspicion provided
that the canine sniff does not prolong the stop beyond the time
1
required to complete the stop’s mission. We adopt the federal
standard barring unnecessary delays for the purpose of canine
sniffs.
The Bradley Beach Police Department knew defendant Mark
Dunbar through several previous incidents and had recently
received two tips that he was selling drugs. In 2013, a police
officer initiated a motor vehicle stop of Dunbar and two
passengers for parking in a handicapped parking space.
Shortly thereafter, another officer arrived with a canine
trained to detect the presence of narcotics. The police
instructed Dunbar to exit his vehicle. The first officer then
checked if Dunbar and his two passengers had any outstanding
warrants. Because one of the female passengers had an
outstanding warrant, the police called a female officer from a
nearby municipality to arrest her.
At some point, either while waiting for the female
officer’s arrival or shortly after her arrival, the second
officer walked his canine around Dunbar’s car. The canine
signaled the presence of drugs. Faced with this information,
Dunbar consented to a search of his car, which revealed
narcotics. The State charged him with drug possession.
Dunbar moved to suppress the drugs recovered from his car.
The trial court granted Dunbar’s suppression motion, concluding
that the police did not have the requisite reasonable suspicion
2
that Dunbar was engaged in drug activity to conduct the canine
sniff around Dunbar’s car. The State filed a motion to
reconsider based on the then-recent United States Supreme Court
decision, Rodriguez v. United States, 575 U.S. ___, 135 S. Ct.
1609, 191 L. Ed. 2d 492 (2015), which held that officers do not
need reasonable suspicion to conduct a canine sniff but that
they cannot delay a traffic stop to perform such a sniff. The
court denied the State’s motion.
The Appellate Division affirmed, holding that police
officers need reasonable suspicion independent of the
justifications for a traffic stop to perform a canine sniff.
Despite recognizing that the timeline was unclear, the appellate
panel also held that the canine sniff did not unreasonably
prolong the traffic stop.
For the reasons set forth in this opinion, we reverse the
grant of Dunbar’s motion to suppress and remand for further
factfinding. Specifically, we direct the trial court to assess
whether the canine sniff prolonged the traffic stop and, if so,
whether independent reasonable suspicion supported that delay.
I.
A.
The following facts derive from the undisputed testimony at
defendant’s motion to suppress hearing. On May 3, 2013, around
10:20 p.m., Bradley Beach Police Officer Michael Tardio was on
3
patrol in a marked police vehicle. As he drove past a QuickChek
convenience store, he observed a green Ford Focus parked in one
of QuickChek’s handicapped-reserved spaces. The car’s New
Jersey license plate did not bear a handicapped designation, nor
was there a handicapped designation placard on display in the
car’s interior.
Officer Tardio recognized the car as that of defendant Mark
Dunbar. Officer Tardio had personal knowledge of Dunbar through
Dunbar’s “many” prior interactions with law enforcement. In
2012, the Bradley Beach Police had arrested Dunbar for a
narcotics offense. One week prior to the QuickChek traffic
stop, Officer Tardio had received information from two sources -
- one identified informant and one anonymous informant -- about
Dunbar’s alleged drug distribution activities in the area.
On April 28, 2013, five days prior to the traffic stop,
Officer Tardio responded to Dunbar’s complaints about harassing
text messages he received from his friend’s husband. Officer
Tardio met with Dunbar at his apartment, where Dunbar showed him
a text message threatening to harm him if he continued to sell
narcotics to the sender’s wife. Officer Tardio contacted the
sender, who acknowledged sending the message and explained that
his wife was a recovering drug addict to whom Dunbar had
recently sold pills.
Then, on May 2, 2013, one day before the traffic stop, the
4
Bradley Beach Police received information about Dunbar from the
Manasquan Police Department. Specifically, the Manasquan Police
relayed that a female, who “wanted to remain anonymous,”
reported she “was getting her drugs from Mark Dunbar,” and
disclosed his home address. The anonymous informant also
reported that Dunbar used a green Ford Focus, with a New Jersey
license plate matching that of the car parked at QuickChek, to
distribute narcotics.
Returning to May 3, 2013, the evening in question, Officer
Tardio pulled into the QuickChek parking lot to initiate a motor
vehicle stop, activating his emergency lights and pulling behind
Dunbar’s car. Office Tardio exited his patrol car and
approached the suspect vehicle. He observed Dunbar in the
driver’s seat, as well as Lisa Parker, whom the officer also
recognized from “[m]any prior dealings,” in the rear passenger
seat. Dunbar admitted to the officer that he parked in a
handicapped space without possessing the appropriate license
plate or placard because one of his passengers “had a bad back.”
While Officer Tardio spoke with Dunbar, Bradley Beach
Police Officer Major arrived on the scene as backup. Officer
Major was accompanied by a narcotics canine. Upon Officer
Major’s arrival, Officer Tardio instructed Dunbar to exit the
vehicle and walk toward Officer Major while he spoke with Lisa
Parker. Then, Lisa’s sister, Deborah Parker, whom Officer
5
Tardio also knew through prior encounters, exited the QuickChek.
At that time, Officer Tardio confirmed that all three
individuals arrived at the QuickChek together, connecting them
to Dunbar’s vehicle.
After identifying all three individuals, Officer Tardio
“immediately” contacted dispatch to request a warrant search;
the search returned an outstanding warrant for Deborah Parker.
Officer Tardio requested the presence of a female officer to
arrest Deborah Parker. He testified that it is standard
procedure to have a female officer search and arrest female
suspects. Dispatch sent a nearby female officer from the Asbury
Park Police Department because the Bradley Beach Police did not
have a female officer on duty.
Officer Tardio testified that it “maybe” took about two
minutes for the female officer to arrive from Asbury Park. In
the meantime, Officer Tardio spoke with Dunbar and advised him
of the recent allegations that he was selling drugs. Dunbar
denied any wrongdoing. At this point, Officer Tardio informed
Dunbar that Officer Major and his narcotics canine would conduct
a sniff around the vehicle’s exterior. After Officer Major
walked the canine around the vehicle, the canine positively
indicated the presence of narcotics.
The record is unclear as to whether the canine sniff took
place while the officers were waiting for the arrival of the
6
female officer from Asbury Park or after she arrived. Officer
Tardio’s testimony did not specify the time of the canine sniff
or whether the canine sniff substantially delayed the traffic
stop. Before this Court, the State asserted that the canine
sniff and the arrival of the female officer occurred “almost
simultaneously,” but did not offer an exact order of the events.
The precise chronology of the canine sniff, specifically when
the canine walked around Dunbar’s vehicle and whether the sniff
prolonged the purpose of the traffic stop, remains uncertain.
Given the positive canine sniff, Officer Tardio instructed
Dunbar that he could consent to a search of his vehicle or have
his car impounded pending a search warrant. Dunbar initially
refused consent but changed his mind when a tow truck arrived
about ten minutes later. Officer Tardio read Dunbar his rights,
including the right to refuse consent, the right to revoke
consent, and the right to be present during the search. With
Dunbar’s permission, the officers searched the vehicle’s trunk,
from which they recovered Xanax, oxycodone, and heroin. The
officers arrested Dunbar and Deborah Parker.
B.
At the time of his arrest, Dunbar was charged with parking
in a handicapped parking space, contrary to N.J.S.A. 39:4-
138(o), and possession of controlled dangerous substances (CDSs)
by a motor vehicle operator, contrary to N.J.S.A. 39:4-49.1.
7
Subsequently, a Monmouth County grand jury indicted Dunbar for
three counts of third-degree possession of CDSs, contrary to
N.J.S.A. 2C:35-10(a)(1).
Prior to trial, Dunbar moved to suppress the drugs seized
from the trunk of his vehicle. The parties argued the motion in
January 2015. The State presented Officer Tardio as its sole
witness; Dunbar neither testified nor presented any witnesses.
Defense counsel asserted that the canine sniff was not supported
by reasonable suspicion and that Dunbar’s consent was coerced.
The State averred that the officers had reasonable suspicion
that Dunbar was engaged in narcotics sales and that his consent
was voluntary.
At the close of arguments from each party, the court
rendered an oral decision granting Dunbar’s suppression motion.
The court found Officer Tardio to be a credible witness who had
acted appropriately in stopping Dunbar and investigating the
individuals for warrants. The court also concluded that Officer
Tardio acted diligently in questioning Dunbar about the
narcotics allegations.
The court held, however, that the officers did not have
reasonable suspicion that Dunbar was engaged in a drug
transaction in his vehicle in the QuickChek parking lot at that
time and therefore could not perform a canine sniff.
Furthermore, the court held that, based on the number of
8
officers and the threat of towing his vehicle, Dunbar did not
voluntarily provide consent. Accordingly, the court suppressed
the evidence recovered from Dunbar’s trunk.
Ten days later, the State moved for reconsideration in
light of the then-recent United States Supreme Court decision,
Rodriguez, supra, 575 U.S. at ___, 135 S. Ct. at 1609, 191 L.
Ed. 2d at 492. The trial court denied the motion. The court
explained,
[t]he State did not establish the time
necessary to handle the matter of [Dunbar’s]
parking violation. Accordingly, the State did
not establish that, during the time necessary
to handle the matter of [Dunbar’s] parking
violation, the police performed the dog sniff.
The State has not met its burden of proof that
the time for tasks necessitated by [Dunbar’s]
traffic violation included the time of the dog
sniff. Police did not have probable cause to
believe that, at the time and place before the
dog sniff, [Dunbar] possessed CDSs.
Consequently, the court entered an order denying
reconsideration.
Prior to trial, the Appellate Division granted the State
leave to appeal. In an unpublished, per curiam opinion, the
Appellate Division affirmed the suppression of the drugs seized
from Dunbar’s trunk.
The appellate panel accepted that Officer Tardio
appropriately stopped Dunbar to issue him a ticket for parking
in a handicapped parking space, justifiably ordered Dunbar out
9
of his vehicle during the course of the traffic stop, and
properly detained Dunbar and his passengers to conduct a warrant
check. Nonetheless, the panel concurred with the trial judge’s
initial determination that “the officers lacked a reasonable
suspicion that [Dunbar] possessed drugs or was involved in
narcotics activity at the time and place of the stop.”
Citing prior Appellate Division cases, the court posited
that New Jersey’s standard for canine sniffs is reasonable
suspicion. The appellate panel stated that officers may conduct
a canine sniff even if it prolongs a traffic stop, provided that
the officers have reasonable suspicion of drug possession.
Applying that standard to the canine sniff of Dunbar’s vehicle,
the court concluded that the officers did not harbor reasonable
suspicion that Dunbar or the Parker sisters were engaged in drug
activity. Accordingly, the panel found that the officers lacked
reasonable suspicion to effectuate the canine sniff. The panel
also affirmed the trial court’s holding on consent because,
without the canine sniff, there was insufficient reasonable
suspicion to seek Dunbar’s consent to search.
Although not central to its holding, the Appellate Division
briefly discussed the potential delay caused by the canine
sniff. The panel disagreed with the trial court’s findings to
the extent that the court found the canine sniff to cause an
unreasonable delay of the traffic stop. In a footnote, however,
10
the appellate court conceded that “the exact timing of events is
unclear from the record.”
We granted the State’s motion for leave to appeal. 226
N.J. 543 (2016).
II.
A.
The State urges this Court to reverse the judgment of the
Appellate Division and align our standard with the federal
approach to canine sniffs. The State argues that Fourth
Amendment jurisprudence supports the “compelling and
unambiguous” conclusion that a police officer does not need
reasonable suspicion to subject a lawfully stopped vehicle to a
canine sniff for drug detection purposes.
Relying upon United States Supreme Court caselaw, the State
avers that canine sniffs do not require reasonable suspicion
because they are far less intrusive than a search and are
therefore regarded as sui generis. According to the State,
Dunbar presents no justification for deviating from well-
established Fourth Amendment precedent regarding canine sniffs.
The State further contends that requiring reasonable suspicion
to conduct canine sniffs would grant criminals a windfall “while
affording no legitimate privacy protections to the law-abiding
public.” The State stresses that canine sniffs are necessary
not only for narcotics investigations, but also for catching
11
terrorists and child abductors. The State maintains that the
narcotics-trained canines at issue are reliable.
Next, the State asserts that the Appellate Division
misconstrued prior New Jersey caselaw in concluding that police
need reasonable suspicion to effect a canine sniff. The State
claims that any Appellate Division holdings to the contrary were
“mistakenly [written] in dicta” and run counter to the
approaches of the overwhelming majority of other states.
In the alternative, the State argues that Officer Tardio
articulated a reasonable suspicion that Dunbar’s vehicle
contained evidence of narcotics trafficking. The State cites to
the following factors that informed Tardio’s suspicions:
Dunbar’s run-ins with the police, including his previous drug
arrest; the two recent tips that Dunbar was selling drugs,
including one that referenced Dunbar’s car; and the presence of
a person in Dunbar’s car with an outstanding warrant. According
to the State, the totality of those circumstances established
reasonable suspicion to conduct the canine sniff.
B.
Dunbar argues that, under Article I, Paragraph 7 of the New
Jersey Constitution, reasonable suspicion -- separate from the
suspicion necessary for a motor vehicle stop -- is required
before police may subject a lawfully stopped vehicle to a canine
sniff. Conceding that the Appellate Division’s jurisprudence
12
has been inconsistent as to the proper canine-sniff standard,
Dunbar urges this Court to break definitively from the federal
approach.
Dunbar emphasizes New Jersey’s “rich history of affording
our citizens greater protections than the federal constitution”
and asserts that requiring reasonable suspicion to conduct
canine sniffs is consistent with that tradition. Dunbar avers
that the federal standard permits unbridled and indiscriminate
canine sniffs, which intrude upon citizens’ constitutionally
guaranteed rights. Dunbar further maintains that narcotics
canines are unreliable and frequently alert to false positives,
subjecting law-abiding citizens to unwarranted intrusions.
In the alternative, Dunbar contends that, even if Officer
Tardio possessed a reasonable suspicion that Dunbar was selling
drugs out of his vehicle, the State failed to bear its
additional burden of showing that the canine sniff did not
unreasonably prolong the otherwise lawful traffic stop.
III.
A.
The Fourth Amendment to the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution equally
guarantee “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV; N.J. Const. art.
13
I, ¶ 7.
A lawful roadside stop by a police officer constitutes a
seizure under both the Federal and New Jersey Constitutions.
Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 788, 172
L. Ed. 2d 694, 704 (2009); State v. Scriven, 226 N.J. 20, 33
(2016). In order to justify such a seizure, “a police officer
must have a reasonable and articulable suspicion that the driver
of a vehicle, or its occupants, is committing a motor-vehicle
violation or a criminal or disorderly persons offense.”
Scriven, supra, 226 N.J. at 33-34.
During an otherwise lawful traffic stop, a police officer
may inquire “into matters unrelated to the justification for the
traffic stop.” Johnson, supra, 555 U.S. at 333, 129 S. Ct. at
788, 172 L. Ed. 2d at 704; see also State v. Dickey, 152 N.J.
468, 479 (1998) (“[T]he reasonableness of [a] detention is not
limited to investigating the circumstances of the traffic
stop.”).
For instance, a police officer may make “ordinary inquiries
incident to [the traffic] stop,” Rodriguez, supra, 575 U.S. at
___, 135 S. Ct. at 1615, 191 L. Ed. 2d at 499 (alteration in
original) (quoting Illinois v. Caballes, 543 U.S. 405, 408, 125
S. Ct. 834, 837, 160 L. Ed. 2d 842, 847 (2005)), such as
“checking the driver’s license,” verifying whether the driver
has any outstanding warrants, “and inspecting the automobile’s
14
registration and proof of insurance,” ibid. And if, as a result
of 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.’” Dickey, supra, 152 N.J. at 479-80 (alteration in
original) (quoting United States v. Johnson, 58 F.3d 356, 357-58
(8th Cir.), cert. denied, 516 U.S. 936, 116 S. Ct. 348, 133 L.
Ed. 2d 245 (1995)).
An officer’s ability to pursue incidental inquiries,
however, is not without limitations. A lawful traffic stop can
transform into an unlawful detention “if its manner of execution
unreasonably infringes” on constitutionally protected interests.
Caballes, supra, 543 U.S. at 407, 125 S. Ct. at 837, 160 L. Ed.
2d at 846. Specifically, the incidental checks performed by a
police officer may not be performed “in a way that prolongs the
stop, absent the reasonable suspicion ordinarily demanded to
justify detaining an individual.” Rodriguez, supra, 575 U.S. at
___, 135 S. Ct. at 1615, 191 L. Ed. 2d at 499; see also Dickey,
supra, 152 N.J. at 476-79 (noting that detention can become
unlawful if longer than needed to diligently investigate
suspicions).
Accordingly, “[a] seizure that is justified solely by the
interest in issuing a warning ticket to the driver can become
unlawful if it is prolonged beyond the time reasonably required
15
to complete that mission.” Caballes, supra, 543 U.S. at 407,
125 S. Ct. at 837, 160 L. Ed. 2d at 846; see also State v.
Coles, 218 N.J. 322, 344 (2014) (“[T]he detention must be
reasonable both at its inception and throughout its entire
execution.”).
Having reviewed the overarching constitutional principles
at issue in this appeal, we now turn to the relevant
jurisprudence concerning canine sniffs.
B.
The United States Supreme Court has addressed the
constitutionality of canine sniffs on several occasions. In
United States v. Place, the Court considered a canine sniff
performed at an airport to inspect the defendant’s luggage. 462
U.S. 696, 698-700, 103 S. Ct. 2637, 2639-41, 77 L. Ed. 2d 110,
115-16 (1983). The Court held that a canine sniff does not
constitute a “search” within the meaning of the Fourth
Amendment. Id. at 706-07, 103 S. Ct. at 2644-45, 77 L. Ed. 2d
at 120-21. In reaching that conclusion, the Court reasoned that
a canine sniff is so limited in the manner of investigation and
in the noncontraband items it reveals that it is “much less
intrusive than a typical search.” Id. at 707, 103 S. Ct. at
2644, 77 L. Ed. 2d at 121. The Court thus characterized canine
sniffs as sui generis. Id. at 707, 103 S. Ct. at 2644-45, 77 L.
Ed. 2d at 121.
16
The Court has since reaffirmed its conclusion that a canine
sniff does not present a search subject to the Fourth Amendment.
In City of Indianapolis v. Edmond, the Court held that officers
walking a drug-sniffing canine around a vehicle stopped at a
checkpoint did not transform an otherwise lawful seizure into a
search. 531 U.S. 32, 40, 121 S. Ct. 447, 453, 148 L. Ed. 2d
333, 342-43 (2000).
The Supreme Court clarified its approach to canine sniffs
conducted during routine traffic stops in two cases. In
Caballes, supra, a trooper pulled the defendant over for
speeding. 543 U.S. at 406, 125 S. Ct. at 836, 160 L. Ed. 2d at
845-46. As the trooper wrote the defendant a warning ticket, a
second trooper arrived with a canine trained to detect
narcotics, which he walked around the defendant’s vehicle.
Ibid. The canine detected the presence of drugs, leading to a
search that uncovered marijuana. Id. at 406, 125 S. Ct. at 836,
160 L. Ed. 2d at 846. The entire affair took approximately ten
minutes. Ibid. The Illinois Supreme Court held that the canine
sniff was unconstitutional because the troopers did not have
reasonable suspicion that the defendant possessed narcotics.
Id. at 408, 125 S. Ct. at 837, 160 L. Ed. 2d at 846.
The United States Supreme Court reversed, holding that “a
dog sniff would not change the character of a traffic stop that
is lawful at its inception and otherwise executed in a
17
reasonable manner, unless the dog sniff itself infringed [upon
the defendant’s] constitutionally protected interest in
privacy.” Id. at 408, 125 S. Ct. at 837, 160 L. Ed. 2d at 847.
The Court concluded that the canine sniff, which took place
outside of the defendant’s vehicle while the troopers were in
the process of carrying out the traffic violation, did not
infringe upon the defendant’s privacy interests. Id. at 408-10,
125 S. Ct. at 837-38, 160 L. Ed. 2d at 847-48. In sum, the
troopers did not need reasonable suspicion that the defendant
was engaged in narcotics trafficking to conduct the canine
sniff.
Elaborating on its holding in Caballes, the Supreme Court
later addressed whether police can extend an otherwise completed
traffic stop in order to conduct a canine sniff, absent
independent reasonable suspicion. In Rodriguez, supra, a canine
officer pulled the defendant over for a traffic violation. 575
U.S. at ___, 135 S. Ct. at 1612, 191 L. Ed. 2d at 496. After
completing a records check on the defendant and his passenger,
the officer issued a written warning. Id. at ___, 135 S. Ct. at
1613, 191 L. Ed. 2d at 497. At that point, with the
justification for the traffic stop “out of the way,” the officer
performed a canine sniff around the defendant’s vehicle,
resulting in a positive indication of narcotics. Ibid. A
subsequent search uncovered methamphetamine. Ibid.
18
The Court reaffirmed its holding that, although an officer
“may conduct certain unrelated checks during an otherwise lawful
traffic stop,” the officer “may not do so in a way that prolongs
the stop, absent the reasonable suspicion ordinarily demanded to
justify detaining an individual.” Id. at ___, 135 S. Ct. at
1615, 191 L. Ed. 2d at 499. The Court explained that a canine
sniff is a check unrelated to the mission of a traffic stop.
Ibid. Applying that analysis to the facts of Rodriguez, the
Court stated:
If an officer can complete traffic-based
inquiries expeditiously, then that is the
amount of “time reasonably required to
complete [the stop’s] mission.” As we said in
Caballes and reiterate today, a traffic stop
“prolonged beyond” that point is “unlawful.”
The critical question, then, is not whether
the dog sniff occurs before or after the
officer issues a ticket . . . but whether
conducting the sniff “prolongs” -- i.e., adds
time to -- “the stop.”
[Id. at ___, 135 S. Ct. at 1616, 191 L. Ed. 2d
at 500-01 (alteration in original) (citations
omitted).]
Therefore, the Court remanded for the lower court to
determine whether independent reasonable suspicion justified
detaining the defendant “beyond completion of the traffic
infraction.” Id. at ___, 135 S. Ct. at 1616-17, 191 L. Ed. 2d
at 501.
To summarize, the federal standard does not require
particularized reasonable suspicion to conduct a canine sniff
19
during the course of a routine traffic stop. But if the canine
sniff extends the traffic stop beyond the time reasonably
required to complete the traffic stop’s purpose, the sniff is
unlawful absent independent reasonable suspicion of criminal
activity. See Brent E. Newton, The Real-World Fourth Amendment,
43 Hastings Const. L.Q. 759, 793 (2016) (describing federal
standard).
C.
This Court has yet to address New Jersey’s standard for
conducting a canine sniff. The Appellate Division has reached
the issue several times, yielding inconsistent results.
In State v. Cancel, the Appellate Division addressed a
canine sniff performed on the defendant’s luggage in an airport.
256 N.J. Super. 430, 433 (App. Div. 1992), certif. denied, 134
N.J. 484 (1993). The Appellate Division upheld the use of the
canine sniff. Id. at 435-37. Quoting extensively from Place,
the appellate court explained that canine sniffs are sui generis
and do not constitute searches under the Federal or our State
Constitutions. Id. at 436-37. The opinion noted, however, that
“[h]ad [the defendant] been detained without reasonable
suspicion until a narcotics-sniffing canine was brought to the
scene an argument could have been made that the detention was
unlawful and the evidence later uncovered should be suppressed.”
Id. at 435.
20
In a case decided in 2006, the Appellate Division appeared
to depart from the federal approach to canine sniffs. In State
v. Elders, one of the issues the appellate court considered was
whether an officer’s threat to call a narcotics canine to a
traffic stop was coercive. 386 N.J. Super. 208, 228-29 (App.
Div. 2006), aff’d in part, rev’d in part, 192 N.J. 224 (2007).
The Appellate Division cited Cancel as support for the position
that “[t]he test of a justifiable use of a drug-sniffing dog is
reasonable suspicion -- the same test applicable to justify a
request for consent to search.” Id. at 228. Thus, the court
announced that reasonable suspicion is required before police
may conduct a canine sniff during a lawful traffic stop. The
appellate court held that the officer in Elders possessed the
reasonable suspicion required to conduct the canine sniff. Id.
at 229-30. We did not reach that issue on appeal.
The reasonable suspicion analysis in Elders informed the
next Appellate Division case on the issue, State v. Baum, 393
N.J. Super. 275 (App. Div. 2007), aff’d as modified, 199 N.J.
407 (2009). In Baum, the court again addressed whether a threat
to call a narcotics canine during a traffic stop constitutes
coercive action. Id. at 284. In holding that the canine sniff
was not coercive, the appellate court perpetuated the perception
that officers need reasonable and articulable suspicion of drug
possession to conduct a canine sniff. Id. at 290 (citing
21
Elders, supra, 386 N.J. Super. at 229). The panel concluded
that reasonable suspicion was present based on the facts in
Baum. Ibid. Again, we did not reach the issue of the canine
sniff standard in the subsequent appeal.
Thus, the Appellate Division has echoed some of the federal
approach regarding canine sniffs but has departed from the
federal standard by requiring reasonable and articulable
suspicion to justify canine sniffs.
IV.
When reviewing a trial court’s decision to grant or deny a
suppression motion, appellate courts “must defer to the factual
findings of the trial court so long as those findings are
supported by sufficient evidence in the record.” State v.
Hubbard, 222 N.J. 249, 262 (2015). We will set aside a trial
court’s findings of fact only when such findings “are clearly
mistaken.” Ibid. We accord no deference, however, to a trial
court’s interpretation of law, which we review de novo. State
v. Hathaway, 222 N.J. 453, 467 (2015); State v. Hinton, 216 N.J.
211, 228 (2013).
A.
The central issue raised in this appeal is the proper basis
for a canine sniff during a lawful traffic stop. Because this
presents an issue of law, we accord no deference to the trial
22
court’s interpretation. Hinton, supra, 216 N.J. at 228. We
hereby adopt the federal standard for canine sniffs.
First, we endorse the federal determination that a canine
sniff is sui generis and does not transform an otherwise lawful
seizure into a search that triggers constitutional protections.
Place, supra, 462 U.S. at 706-07, 103 S. Ct. at 2644-45, 77 L.
Ed. 2d at 120-21; Edmond, supra, 531 U.S. at 40, 121 S. Ct. at
453, 148 L. Ed. 2d at 342-43. Canine sniffs do not involve the
unveiling of noncontraband items that would otherwise remain
unexposed to public view and signal only the presence or absence
of illegal items. Place, supra, 462 U.S. at 707, 103 S. Ct. at
2644, 77 L. Ed. 2d at 121. Canine sniffs therefore constitute a
unique procedure that is less intrusive than a search.
Accordingly, we agree with the Appellate Division’s
conclusion in Cancel that a canine sniff performed during a
lawful detention does not constitute a search under the Fourth
Amendment to the United States Constitution or Article I,
Paragraph 7 of the New Jersey Constitution.
Second, we hereby adopt the federal standard for
determining the manner in which an officer may conduct a canine
sniff during an otherwise lawful traffic stop. To the extent
that Elders and Baum can be read to suggest a different
standard, we disapprove of that reading.
23
The federal standard, which focuses upon whether the canine
sniff unreasonably prolongs a traffic stop beyond its lawful
purpose, is a functional approach consistent with our caselaw.
It is undisputed that a police officer may investigate
circumstances outside the scope of the justification for a
lawful traffic stop. Dickey, supra, 152 N.J. at 479-80. It is
similarly unchallenged that the stop can evolve into an unlawful
detention if its scope expands too far or the stop is
unnecessarily prolonged. See ibid. (requiring reasonable
suspicion unrelated to traffic offense to broaden inquiry); see
also Coles, supra, 218 N.J. at 344 (requiring detention to be
reasonably based throughout its duration). Thus, a lawful
traffic stop may turn unconstitutional if the officer overly
broadens the scope or prolongs the stop, absent independent
reasonable suspicion.
In light of our determination that a canine sniff does not
constitute a search and our reaffirmation that an unreasonably
prolonged traffic stop is an unlawful seizure, the federal
standard best conforms to our jurisprudence.
Accordingly, we hold today that an officer does not need
reasonable suspicion independent from the justification for a
traffic stop in order to conduct a canine sniff. See Caballes,
supra, 543 U.S. at 408, 125 S. Ct. at 837, 160 L. Ed. 2d at 847.
At the same time, we emphasize the United States Supreme Court’s
24
admonition that 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. Rodriguez, supra, 575 U.S. at
___, 135 S. Ct. at 1616, 191 L. Ed. 2d at 500-01. In other
words, in the absence of such suspicion, an officer may not add
time to the stop. Ibid. Thus, 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 ___,
135 S. Ct. at 1616-17, 191 L. Ed. 2d at 501.
B.
Applying this legal standard to Dunbar’s appeal, two issues
arise: whether the canine sniff prolonged Officer Tardio’s
traffic stop beyond the time reasonably required to address
Dunbar’s parking infraction, and, if so, whether this delay was
justified by independent reasonable suspicion that Dunbar
possessed drugs at that time.
The record before this Court does not provide sufficient
information to determine whether the canine sniff prolonged
Officer Tardio’s traffic stop. The trial court did not make
explicit findings as to the chronology of the canine sniff, and
the Appellate Division acknowledged that the record provided
incomplete information about the timeline of events. Moreover,
25
the Appellate Division premised its holding upon the reasonable
suspicion standard that we reject today.
Consequently, we reverse the judgment of the Appellate
Division and remand for additional proceedings. Specifically,
the trial court should focus its factfinding on the “critical
question” of whether the canine sniff prolonged the traffic stop
and, if so, whether independent reasonable suspicion justified
that delay. Id. at ___, 135 S. Ct. at 1616, 191 L. Ed. 2d at
501. We express no opinion as to whether the canine sniff
prolonged the traffic stop or whether the totality of the
circumstances generated reasonable suspicion that Dunbar
possessed drugs at the time of the stop. We leave those
determinations to the trial court on remand.
V.
The judgment of the Appellate Division is reversed and the
matter is remanded for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s
opinion.
26