STATE OF NEW JERSEY VS. DWAYNE D. BOSTON (15-09-2753, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4752-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. APPROVED FOR PUBLICATION
September 16, 2021
DWAYNE D. BOSTON,
APPELLATE DIVISION
a/k/a TIMOTHY MCCANN,
DWAYNE R. BOSTON,
RALPH R. BOSTON, and
DWAYNE MCCANN,
Defendant-Appellant.
__________________________
Argued November 5, 2020 - Decided September 16, 2021
Before Judges Ostrer, Accurso, and Enright.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County, Indictment No. 15-09-
2753.
Alison Perrone, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the briefs).
Rachel M. Lamb, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Jill S. Mayer, Acting Camden County
Prosecutor, attorney; Jason Magid, Special Deputy
Attorney General/Acting Assistant Prosecutor, and
Rachel M. Lamb, of counsel and on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
Defendant Dwayne D. Boston was arrested for third-degree possession
of cocaine following a routine traffic stop on his way home from the movies
with his wife and children. His suppression motion was denied, the jury
convicted him, and the judge sentenced him to a discretionary extended prison
term of seven years with three-and-a-half years of parole ineligibility. He
appeals, contending the police unlawfully asked him, a front-seat passenger in
his wife's car, to hand over his State identification card after he told them he
did not have a driver's license. We agree, and reverse. We hold the officers'
demand for Boston's identification after he told them he did not possess a
driver's license, exceeded the scope of this routine traffic stop. Accordingly,
we find defendant's arrest on the subsequently discovered open traffic warrant
was unlawful, and the drugs seized in the ensuing search incident to that arrest
should have been excluded at trial.
This case is unusual in that the evidence at trial differed from what the
State presented at the suppression hearing because the officers' dash cam
videos were not played at the suppression hearing. We present the evidence as
it was offered, first at the suppression hearing and then at trial.
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Boston was arrested on a rainy Saturday night in March 2015, when a
Cherry Hill police officer ran a random lookup of his wife's license plate and
learned the registered owner of the car had a suspended license and an active
traffic warrant. Boston moved to suppress the drugs recovered in the search
incident to his arrest, claiming the officer didn't "take the time" to observe
whether the driver matched the description the officer obtained in his lookup;
that as an "innocent passenger," he shouldn't have been subject to questioning
or having his name checked in the National Crime Information Center (NCIC)
database; and that a police officer choosing "which plates to run . . . based on
the race of the driver," violates the Constitution.
The State opposed the motion, arguing the information that the
registered owner's license was suspended and she had an active traffic warrant
were sufficient justification for the stop in accord with State v. Donis, 157 N.J.
44, 54-55 (1998), and the officer didn't need to match the physical description
of the registered owner to the driver before signaling for the driver to pull
over. The State claimed defendant had "absolutely nothing" to suggest the
officer's random plate inquiry was racially motivated, thus requiring no
response on its part. Finally, the State contended the facts demonstrated the
officer only asked for defendant's identification after his wife's arrest "in order
to confirm that he had a valid driver's license and could take possession" of the
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car, and the officer didn't need reasonable suspicion to run defendant's name
through the NCIC database under State v. Sloane, 193 N.J. 423, 426 (2008).
At the suppression hearing, the testimony went in as the State
represented in its brief it would. The officer who made the stop testified he
was stopped at a red light while traveling east on Route 38 at about 8:35 p.m.
According to the officer, he "typically conduct[s] random inquiries of the
registrations of the vehicles around [him]. And that's what [he] did." When he
ran the plate on the gold Hyundai stopped in front of him at the same light, he
saw the registered owner had a suspended driver's license, as well as an active
ATS (automated traffic system) warrant. The officer activated his overhead
emergency lights, pulled the Hyundai over, and advised dispatch he was
conducting a stop. He also radioed for backup. He then walked to the driver's
side door and spoke to the driver, noting there was a male passenger,
defendant, in the front seat and three children in the backseat. The officer
testified he collected the driver's documents and returned to his patrol car.
Asked what happened after that, the officer testified he confirmed the
driver was the registered owner and had an active traffic warrant. The officer
testified his "partner" had by then arrived and the two reapproached the car.
The testifying officer explained he had the driver get out of the car and
arrested her on the open warrant. According to the officer, he then had his
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partner "obtain identification on the male passenger so that we could turn over
custody of the vehicle to him, since there were children in the vehicle." He
explained he "didn't want to have to tow the vehicle and leave them stranded."
The officer testified that when his partner checked defendant's
information, he learned defendant also had a suspended New Jersey license
and an active traffic warrant. Knowing that both adults would be arrested, the
officer reapproached the car and advised defendant "to make arrangements" for
the children, which defendant did by calling his sister, who lived in Camden,
to come pick them up. When defendant's sister arrived, the officer completed
a juvenile release form allowing her to take the children and handcuffed
defendant. The officer testified that although defendant was under arrest, the
officer waited to handcuff him until his sister arrived so he wouldn't have to
arrest defendant "in front of his children." Before placing defendant in the
back of his patrol car, the officer conducted a pat down search and found the
crack cocaine in defendant's jacket pocket. Defendant's sister followed the
officers to the nearby police station in the Hyundai where defendant and his
wife were processed and released.
After the officer completed that narrative on direct examination, the
prosecutor prepared to show the dash cam videos of the stop. Defense counsel
announced she would "stipulate . . . that [the video] pretty much shows what
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the officer testified to. There's really no discrepancy." Because counsel stated
she had "no cross-exam based on the video," it was not played for the court.
The judge secured the agreement of both counsel that she could watch it later,
"[i]f necessary," and defense counsel proceeded without the videos for her
cross-examination of the officer. 1
On cross, defense counsel asked the officer whether "[a]t any point
before asking [defendant] for his information, did you ask him if he wanted to
drive the car." The officer responded that he "didn't speak with [defendant] at
that point," instead asking his partner to ask defendant "if he wanted to take
possession of the vehicle." The officer couldn't say whether his partner asked
the question before directing defendant to produce his identification. The
officer agreed with counsel that defendant was cooperative and polite
throughout their encounter and had done nothing to arouse any suspicion of
wrongdoing.
1
We do not approve of this practice, which appears to us a too casual
approach to the handling of evidence on a suppression motion. Not admitting
the videos in evidence while still making them available to the court for review
"if necessary," leaves the record open and unsettled, inappropriately so. See
R. 1:2-3 (stating "[t]he verbatim record of the proceedings shall include
references to all exhibits").
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On re-direct, the prosecutor asked if the officer's usual practice when he
arrests a driver with another person in the car was to "check to see if the other
person's able to even drive a car." The officer responded:
Yes. And most of the time I'll ask. I don't recall if I
asked [defendant's wife]. But I was acting in good
faith as far as the welfare of the children. I obviously
didn't want to — I mean, at that point, the registered
owner was placed under arrest, and it's her vehicle. I
could have towed the vehicle and left Mr. Boston and
the three children there, and I didn't want to do that.
So that's why I, you know, requested — I wanted to
check the validity of his license.
The prosecutor followed up, "[s]o you usually let someone else take over
another car, especially with passengers. Would you run — do you run their
stuff?" The officer answered he did, "[j]ust to check to make sure they have a
valid license."
On re-cross-examination, defendant's counsel said she had only "one
question," asking: "You said you checked the validity of his license. Did —
because you didn't speak to [defendant], would it be fair to say you don't know
whether or not he said 'I have a license, I'm going to drive the car?'" The
officer replied: "No, I do not. And I don't recall if I had the physical license,
or if he provided his information."
That question prompted one from the court. The judge probed to
confirm with the officer that he "had no conversation with [defendant] as to
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whether or not he was driving, going to be taking the kids home, before we got
to that point [the driver's arrest], or you got to that point? It was all [the
officer's partner]?" The officer replied:
Yes, I believe so. Because I was in my vehicle with
[defendant's wife], and I don't recall, but typically I
ask the owner if they want — I usually give the
option. I'll ask, you know, I can tow your vehicle or
you can give it to somebody else. And in this case,
another adult was present. So I don't recall
specifically, but what I — how I typically operate, I
would ask her if she wants me to have [defendant]
take possession of the vehicle for her. . . . As opposed
to towing it.
After hearing that testimony, the judge denied defendant's suppression
motion without viewing the video. She noted defense counsel's significant
concession, following the officer's testimony, that he was credible, and race
didn't play any role in the stop. The judge agreed, saying she couldn't "find
one thing that's not believable about this, about his testimony." She found that
after confirming defendant's wife was the registered owner of the car and had
to be arrested, the officer did what she hoped "any decent police officer would
do," and that is not arrest defendant in front of his children and "made sure the
kids had a safe place to go as opposed to hurting the kids and sending them to
[the Division of Child Protection and Permanency] or [to] some type of
custodial situation."
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The judge found it "reasonable to ask the other adult in the situation if
they are going to be driving, and for their identification." She rejected
defendant's claim that he, as the innocent passenger, was illegally searched
"because the officer ran his information through the database without
reasonable suspicion or probable cause to do so," explaining to defendant, who
was present in the courtroom, that the officer "doesn't necessarily need that."
Relying on Sloane, the judge explained to defendant that "running [his]
driver's license through the database is not a search, but rather a reasonable
inquiry to ensure that [he] could lawfully take possession of the vehicle."
At trial, however, the evidence was different from what it had been at
the suppression hearing. The prosecutor opened to the jury plying the same
theme, telling jurors they would hear from the officer, who would explain he
"generally permits the passenger or someone eligible to drive the car or to go
ahead and take the car off, usually after confirming their identity," but could
not do so here because the lookup revealed an open traffic warrant for
defendant as well. Defense counsel, on the other hand, told jurors they would
get to see the dash cam videos and hear the officer ask defendant "do you have
a license? Can you take control of the car?" and hear defendant "say, no I only
have this State I.D. I don't have a license."
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When the officer testified at trial about the stop, the prosecutor asked,
"in this kind of situation where you have three children in the backseat and
another person who could potentially drive, what do you do, generally?" The
officer answered he "usually ask[ed] if [the passenger] ha[s] a valid driver's
license and confirm that, and if it's okay with the registered owner, then [he'll]
release the vehicle to them as opposed to towing it." When the prosecutor
asked how the officer confirmed defendant had a valid driver's license here,
the officer responded:
I had my partner ask him for — I believe I initially
asked if he had a valid license, and he didn't give me a
straight answer and I wasn't really sure but he
indicated that he didn't. I had my partner . . . ask him
for his information so we could look up his license to
confirm its status.
In response to the prosecutor's question of whether defendant produced a
license, the officer testified, "I don't believe he had a license on his person or
an I.D. but he provided his personal information so we could look it up."
The prosecutor next asked "if you ask him, does he have to provide you
that information?" The officer responded "[i]n this case, no, he wasn't
violating any laws or anything like that so he did not." The prosecutor
followed up: "But in this case he did provide it." To which the officer
responded, "Yes." The officer further testified that defendant provided his
name and date of birth, explaining "[t]hat's all we need to look up a driver's
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license or a State I.D." In response to the prosecutor's question of why the
officer would want the passenger's personal information, the officer responded:
In this particular case, one, to confirm his license
status even though he indicated that it wasn't valid.
We have people who are unsure of the status of their
license all the time. They'll tell us it's suspended
when it's not or vice versa. So to confirm its status, to
make sure that it wasn't actually valid so we could
turn the vehicle over to him, and also due to the fact
that there was three children in the back, for
documentation purposes since we're placing the driver
under arrest we don't want to leave children with an
unidentified person in the vehicle.
The officer testified that when his partner "check[ed] [defendant's]
information," he learned defendant also had a suspended license and an open
traffic warrant, meaning defendant would also have to be arrested. 2 The
officer testified that
[d]ue to the circumstances, it was raining, it was dark
outside, the three children in the vehicle, [he] didn't
want to place [defendant] under arrest and leave the
children in the vehicle by themselves. So we
approached [defendant] and advised him . . . of the
circumstances and had him contact a family member
2
Although there is no question but that the inquiry resulted in an audio
notification to the officers that defendant's license was "suspended," the
discussion between defendant and the officer captured by the video suggests
the "suspension" might have resulted from defendant being recently cited for
driving without a license. Our review of the record suggests no definitive
answer as to whether Boston did or did not have a New Jersey driver's license.
The motor vehicle record is not in the appendix. Because it is not relevant to
our analysis, we do not consider the issue further.
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to respond to take custody of the children and the
vehicle.
After having the officer testify to placing defendant under arrest and
finding the cocaine in the pocket of his jacket, the prosecutor p layed the
officers' dash cam videos for the jury. 3 Critical to our analysis, the first
minutes of the video show the officer walking to the driver's door, introducing
himself and asking for the driver's license, registration and insurance card.
The driver turns over some documents, and the officer confirms with her that
she is the registered owner. He then explains the reason for the stop.
The officer next asks if the front seat passenger is the driver's "husband
or boyfriend." The driver's answer is inaudible, but the officer immediately
3
As already noted, the dash cam videos were not played at the suppression
hearing, and the judge was apparently viewing them for the first time at trial.
At trial, only the first thirty-two-and-a-half minutes of the arresting officer's
dash cam video of the stop was played for the jury. The only portion of the
backup officer's dash cam video played at trial was the five-minute segment
recording defendant's arrest and subsequent search. The parties agreed the
jury would only be shown those portions of the videos, and the start and stop
times of each were a part of the stipulations included in the jury instructions,
according to the judge. In their briefs, both parties make reference to aspects
of the backup officer's dash cam video that were not played at trial and thus
never viewed by the jury. The State also makes reference to the dash cam
videos when discussing the evidence presented at the suppression hearing,
ignoring it elected not to play the videos at that hearing. Although disk(s)
containing the entirety of both dash cam videos were entered in evidence at
trial and are included in defendant's appendix, we do not consider those parts
not played for the jury as part of the trial record. We thus have limited our
own discussion of the dash cam videos to those portions actually viewed by the
jury.
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asks defendant, "do you have a valid license on you, sir?" Defendant's answer
is also inaudible, but the officer responds, "I mean do you have one, you just
don't have it with you?" Again, defendant's answer is inaudible beyond the
word, "photo." The officer tells the driver, "I can't hear what he's saying."
The driver's response is also inaudible, but it prompts the officer to say, "I
know. I'm not asking if he has one on him. I'm asking if he has one." In a
clear exchange, defendant says, "No, I have no license. I've got a photo I.D."
The officer replies, "Oh, a State I.D.?" Defendant answers, "Yeah," prompting
the officer to say, "Okay, let me see that." The driver shortly hands something
to the officer, which he appears to review.
After obtaining yet another document from the driver and telling her to
"hang tight," the officer walks back to his patrol car. A minute or so later, the
officer returns to the car, asks the driver to step out and arrests her on the
traffic warrant. By then, the officer's backup had arrived. As the arresting
officer puts defendant's wife in the backseat of the patrol car, he tells his
partner to "see if he has I.D.," notwithstanding the arresting officer appeared to
already have reviewed the identification defendant appeared to have produced
at the officer's request.
While the video picks up the conversation between the arresting officer
and the driver as he secures her in the backseat of his patrol car, the backup
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officer is visible at defendant's door. The arresting officer is then shown
joining his backup partner at defendant's door to explain why they've arrested
his wife. The backup officer remains for a minute or so, and then walks back
toward the patrol cars. The arresting officer asks whether defendant "has any
money on him" to satisfy the ticket underlying his wife's arrest warrant. When
defendant says he has $200, the officer offers to take it to defendant's wife,
telling defendant the sum should be sufficient to allow his wife's immediate
release. Addressing defendant's lack of a driver's license and the kids in the
backseat, the officer tells defendant:
look, you're on a private, municipal road, you're not in
the middle of the road or anything like that, okay. [4]
Obviously, if you don't have a license, I'm not going
to tell you you are allowed to drive or whatever. But
you have a cell phone on you, right? You can start to
make arrangements, okay. I trust you, you are an
adult. I'm not gonna you know . . . But as far as you
being able to drive, you're not going to be able to
drive, you're going to have to figure something out. I
mean, she shouldn't have even been driving here . . .
her license was suspended, okay. So look, look at me,
I understand the situation. I want you to use your
judgment, okay, but we can't tell you you are allowed
to drive or anything because you don't have a license,
okay. Do you have anybody that can come?
4
When police signaled her to pull over, the driver had turned off Route 38
onto a residential street.
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By the time the arresting officer had completed his conversation with
defendant and was taking the cash to his wife, the officer's partner had learned,
based on the information provided by defendant, that defendant also had a
suspended license and an active traffic warrant. As the two officers confer
briefly behind the car, one of the officers comments, "This is a mess," to which
the other responds, "Yep." The arresting officer asks, "What are we going to
do with the kids?" His backup replies, "I don't know, man. They are going to
have to call to get someone here. See if they can call somebody to come pick
up the car, like a grandma, aunt, sister, brother." By that time, however, the
video makes clear defendant was already making "arrangements" based on the
arresting officer's prior direction to have someone come and drive the car to
the police station where they would pick up defendant's wife.
Just before defense counsel was to start her cross-examination of the
officer, counsel asked the judge if she would address an issue that had just
come up. The judge responded: "Go ahead because I'm bringing the jury out.
I already called for them." 5 That led to the following exchange:
5
The judge had just engaged in a heated exchange with defendant and his
counsel over defendant's decision to leave his two young children in the rear of
the courtroom unattended during the officer's direct examination, causing the
judge, in her words, to "wast[e] a significant amount of time while a jury is
waiting" to ensure the children would remain outside in the hallway until
someone could come and pick them up.
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DEFENSE COUNSEL: The prosecutor just informed
me that if I ask any questions about why the officer
ran my client's information that she'd be objecting
because a motion was already denied. But my
understanding is that even if the motion is denied I'm
still allowed to ask.
THE COURT: You can't ask about it.
DEFENSE COUNSEL: Okay.
THE COURT: I found probable cause for the stop.
We heard the motion a couple of months ago.
DEFENSE COUNSEL: Yes. My partner litigated
about the random license check.
THE COURT: Yes.
DEFENSE COUNSEL: Okay.
THE COURT: All rise for the jury please.
Complying with the court's direction, counsel did not inquire into the
officer's decision to run defendant's information, confirming only that the
officer asked defendant in the first minutes of the stop if he had a driver's
license, and that defendant unequivocally told the officer he did not have a
driver's license, but only a State I.D. Defense counsel's only other inquiry
about the issue consisted of confirming that "at some point either you or [your
partner] decides to run [defendant] as well." The officer responded that his
partner "asked [defendant] for his information, yes." Defense counsel parried:
"When you already knew he didn't have a license, correct?" The officer
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answered, saying, "Well, he inferred [sic] that but we hadn't confirmed that
yet." Defense counsel closed out her inquiry by asking, "Okay. But he didn't
tell you he had one though, did he," to which the officer replied, "He did not."
After successfully blocking defendant from questioning the officer about
why he asked defendant for his identification, the prosecutor addressed the
issue in her closing, saying:
yes, [the officer] asked if [defendant] had a license
and he didn't. So they asked for identification. He
provided an I.D. card and his name. Defendant didn't
have to respond. Defense is right; he didn't have to.
He could have told them to kick rocks or whatever,
you know? He didn't have to give [the officer] any
kind of identification but he did. And the only reason
they even asked it, as you heard [the officer] explain,
was because they were about to leave three young
children in a car that didn't belong to this person
because they had just arrested the person that it
belonged to, with a man they didn't know. They didn't
know defendant at the time. They didn't know who he
was, you know, didn't know much about him. So they
had to run — not run, sorry. They had to look up his
identification, which in this case was his State I.D.
card and his name to confirm that he could potentially
drive this car and take these kids home.
The jury convicted defendant of third-degree simple possession of less
than one-half ounce of cocaine. The expert testified the actual weight, which
she only estimated due to the small quantity, was closer to a gram. As already
noted, the judge granted the State's discretionary extended term motion, and
subsequently sentenced defendant to seven years in State prison with three -
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and-a-half years of parole ineligibility, rejecting the defense argument that
defendant's possession of a gram of cocaine neither caused nor threatened
serious harm, nor did defendant contemplate it would. The court opined that
"[t]he sale and/or possession of CDS is not a victimless crime" and defendant
had "demonstrated that [he is] a true menace to society, and further that the
public will only be safe from [him] if [he is] in jail."
Defendant appeals, arguing:
POINT I
SUPPRESSION SHOULD HAVE BEEN GRANTED
BECAUSE THE POLICE UNLAWFULLY
REQUESTED IDENTIFICATION FROM MR.
BOSTON, A PASSENGER, WITHOUT ANY
INDICATION THAT HE WAS ENGAGED IN
CRIMINAL ACTIVITY.
POINT II
DEFENSE COUNSEL WAS INEFFECTIVE BOTH
IN FAILING TO CROSS-EXAMINE [THE]
OFFICER . . . ABOUT THE DASHCAM VIDEO AT
THE SUPPRESSION HEARING AND IN FAILING
TO MOVE TO REOPEN THE SUPPRESSION
HEARING AFTER THE OFFICER'S TRIAL
TESTIMONY. (NOT RAISED BELOW)
POINT III
THE TRIAL COURT DEPRIVED DEFENDANT OF
HIS RIGHT TO CONFRONTATION DURING THE
TRIAL WHEN IT PREVENTED DEFENSE
COUNSEL FROM QUESTIONING THE OFFICER
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REGARDING HIS REASONS FOR SUBMITTING A
DATABASE SEARCH FOR MR. BOSTON.
POINT IV
THE SENTENCING COURT'S FAILURE TO FIND
MITIGATING FACTORS IN THE RECORD AND
OVEREMPHASIS OF THE AGGRAVATING
FACTORS RESULTED IN A MANIFESTLY
EXCESSIVE SENTENCE. (NOT RAISED BELOW)
We find no error in the court's denial of the suppression motion given
defense counsel's decision to stipulate the dash cam video would not differ in
any significant degree from the police officer's testimony, resulting in the
video not being played for the court. But that order was only interlocutory,
meaning it could be revised at any time before final judgment in the interest of
justice. See State v. Dispoto, 383 N.J. Super. 205, 215 (App. Div. 2006)
(affirming order of the trial court reversing prior interlocutory order finding
probable cause for a search warrant, based on testimony at a subsequent
Miranda6 hearing calling into question veracity of the affidavit supporting the
search warrant), modified on other grounds, 189 N.J. 108 (2007).
The error here was the trial court's failure to realize the dash cam video
was at odds with the testimony at the suppression hearing, specifically the
officer's testimony that he and his partner only sought defendant's personal
6
Miranda v. Arizona, 384 U.S. 436 (1966).
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information after they had arrested the driver, defendant's wife, in order to
"check the validity of his license," so as to avoid towing the car and leaving
"Mr. Boston and the three children" stranded. The dash cam video makes clear
the testimony the officer gave at the suppression hearing as to when he or his
partner sought defendant's personal information was not accurate. The video
establishes, unequivocally, the officer asked whether defendant had a valid
driver's license when he first approached the car, before arresting the driver. 7
And, critically, when defendant said he had "no license" only "a State I.D.,"
the officer can be heard to state clearly, "Okay, let me see that."
Those new facts, not available to the judge at the suppression hearing,
made it incumbent on the court to consider whether its interlocutory order
denying defendant's suppression motion was sound or whether those new facts
altered the analysis. We conclude the officer's demand to see defendant's State
I.D. after defendant advised he did not possess a driver's license, indeed did
alter the analysis and requires the reversal of defendant's conviction. See State
v. Lamb, 218 N.J. 300, 313 (2014) (noting a trial court's interpretation of law
"and the consequences that flow from established facts" are not entitled to
7
Because the trial judge did not base any of her findings on the video, we do
not transgress our customarily deferential standard of review by basing our
decision on what the video shows — which neither party disputes. See State v.
S.S., 229 N.J. 360, 381 (2017) (adopting the clearly mistaken or erroneous
standard of appellate review for factual findings based on video recordings).
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deference on appeal). The trial court's failure to recognize it was plain error.
See R. 2:10-2; State v. G.E.P., 243 N.J. 362, 389 (2020).
We begin our analysis by noting our agreement with the trial court that
the officer's decision to conduct the stop based on his random lookup of the
Hyundai's license plate was unquestionably lawful. The Court held in Donis
that random license plate lookups by police using mobile data terminals are not
searches subject to Fourth Amendment restrictions. 157 N.J. at 48, 54-55; cf.
Kansas v. Glover, 140 S. Ct. 1183, 1186 (2020) (holding stop based on license
plate lookup revealing registered owner's revoked license is reasonable "when
the officer lacks information negating an inference that the owner is the
driver"). Although defense counsel raised the specter of race having been the
officer's hidden, improper motivation in conducting the license lookup,
defendant's failure to establish even a prima facie case of selective
enforcement at the suppression hearing, or at trial, made an equal protection
analysis unnecessary. See State v. Segars, 172 N.J. 481, 492-96 (2002).
But establishing the legality of the stop is not the end of the inquiry here.
The issue is whether the officer lawfully commanded defendant, a passenger,
to produce his State I.D. after defendant told the officer he did not possess a
driver's license. Confronted with the video evidence at trial it didn't present at
the suppression hearing, the State elided that inquiry by blocking the defense
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from inquiring into the officer's reasons for asking for defendant's I.D. and by
asserting — incorrectly — that defendant volunteered his personal
information.
Although we, of course, are in no way bound by a police officer's view
of the legal effect of his actions, State v. Adubato, 420 N.J. Super. 167, 180
n.5 (App. Div. 2011), we take note of the arresting officer's view here,
endorsed by the State, that Boston, because he "wasn't violating any laws or
anything like that," was under no obligation to provide police with his personal
information. While it is generally the case that individuals who are not
"violating any laws," "are free to go on their way without interference from the
government," as both the Fourth Amendment to the United States Constitution
and Article I, Paragraph 7 of the New Jersey Constitution prevent police from
stopping and detaining people absent particularized suspicion, State v. Shaw,
213 N.J. 398, 409-10 (2012), the prosecutor was plainly incorrect when she
highlighted that testimony, and told the jury that defendant was free to tell the
officer "to kick rocks or whatever" when the officer demanded to see
defendant's State I.D.
Both the officer and the State overlook that defendant, a passenger in his
wife's car, was not free to leave — or to refuse to answer the officer's
"demands for directed behavior" — after police stopped the car on the side of
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22
the road. State v. Rosario, 229 N.J. 263, 275 (2017). The "[t]emporary
detention of individuals during the stop of an automobile by the police, even if
only for a brief period and for a limited purpose, constitutes a 'seizure' of
'persons' within the meaning" of the Fourth Amendment. State v. Dickey, 152
N.J. 468, 475 (1998) (quoting Whren v. United States, 517 U.S. 806, 809-10
(1996)).
The only time a citizen may tell a police officer, metaphorically, "to kick
rocks," that is refuse to listen to what he has to say, and "walk away without
answering any of [the officer's] questions," is in the course of a more casual
field inquiry, when the individual has not been "seized" and remains free,
judged from his perspective, to walk away. Rosario, 229 N.J. at 271-74
(explaining "[t]he difference between a field inquiry and an investigative
detention always comes down to whether an objectively reasonable person
would have felt free to leave or to terminate the encounter with police. . . .
measured from a defendant's perspective").
This car stop was most certainly not a field inquiry from which
defendant could walk away without providing the officer his identification on
demand. See id. at 274 (distinguishing field inquiries begun as conversational
interactions with a person in a parked car from investigative detentions).
Defendant was in a vehicle pulled over by the police, a classic example of a
A-4752-17
23
seizure under the Fourth Amendment and Article I, paragraph 7 of the New
Jersey Constitution. See State v. Dunbar, 229 N.J. 521, 532 (2017) ("A lawful
roadside stop by a police officer constitutes a seizure under both the Federal
and New Jersey Constitutions."); see also Terry v. Ohio, 392 U.S. 1, 16 (1968)
(explaining the importance of recognizing "that whenever a police officer
accosts an individual and restrains his freedom to walk away, he has 'seized'
that person" within the meaning of the Fourth Amendment); Dickey, 152 N.J.
at 476 (applying Terry to a car stop).
And the driver, of course, is not the only one "seized" in a roadside stop
from a constitutional perspective. It has long since been settled that a
passenger in a vehicle stopped by police is seized every bit as much as the
driver, Brendlin v. California, 551 U.S. 249, 251 (2007); Sloane, 193 N.J. at
431. Because both defendant and his wife were seized when their car was
pulled over by police, their encounter with the officers is measured by the
rules governing an investigative detention, not those applicable to a field
inquiry.
Contrary to the prosecutor's advice to the jury, an individual seized by
police has no right to disobey an officer's command by telling him to "kick
rocks." See State v. Crawley, 187 N.J. 440, 443-44 (2006) (noting a
"[d]efendant's obligation to comply with [a police] command did not depend
A-4752-17
24
on how a court at some later time might decide the overall constitutionality of
the street encounter"). As the Court recently explained in Rosario, "[c]ase law
tells people to obey words and deeds of law enforcement that communicate
demands for directed behavior and to raise constitutional objections
thereafter." 229 N.J. at 275. Because defendant's compliance with the
officers' demands for his identification was not voluntary, as asserted by the
State at trial, but mandated by law, the validity of defendant's arrest, search
incident to that arrest and the seizure of the cocaine in his jacket pocket all
turn on whether the officers' demands for defendant's identification were
lawful.8 See Wong Sun v. United States, 371 U.S. 471, 485 (1963) (barring
the State from introducing into evidence the "fruits" of an unlawful search or
seizure); State v. Maryland, 167 N.J. 471, 489 (2001) ("If the field inquiry or
8
We also note the facts presented in the arresting officer's dash cam video do
not support the State's position that defendant "volunteered" his personal
information as, for example, one might construe the defendant's response in
State v. Coles, 218 N.J. 322, 329 (2014) (noting the defendant, subject to a
stop and frisk on his own block, provided officers his address but could not
produce identification to prove who he was and where he lived, offering
instead that relatives could identify him at the address he provided). Here,
defendant complied with the officer's demands, he did not willingly volunteer
any information. See State v. Carty, 170 N.J. 632, 646 (2002) (acknowledging
that consent searches following valid road stops are not voluntary if people
feel compelled to consent); see also Arizona v. Johnson, 555 U.S. 323, 333
(2009) (noting "'consensual' is an 'unrealistic' characterization" of an encounter
in which police questioned a passenger following a road stop, asked him to
step out of the car and patted him down for weapons).
A-4752-17
25
investigatory stop was defective, then the 'seizure' must be deemed
constitutionally defective and the drugs seized must be regarded as the 'fruit of
the poisonous tree' and the evidence suppressed.").
We answer that question — whether the officers' demands for
defendant's identification were lawful — by employing the two-prong test
adopted in Terry, which requires us to consider "whether the officer's action
was justified at its inception, and whether it was reasonably related in scope to
the circumstances which justified the interference in the first place." 392 U.S.
at 20; Dickey, 152 N.J. at 476 (explaining courts employ the Terry standard to
measure the reasonableness of a detention following a valid traffic stop). As
the stop was lawful, which defendant concedes on appeal, we consider whether
the officers' actions in demanding defendant's State I.D. and personal
information were "reasonably related in scope to the circumstances which
justified the interference in the first place."
Because the driver had to be arrested on the open traffic warrant, we find
nothing improper in the arresting officer asking defendant, the only other adult
in the car, if he possessed a valid driver's license. See Sloane, 193 N.J. at 432(finding it reasonable for a police officer to ask a passenger, who requested
keys to the car following the arrest of the driver, for identification "to ensure
that the car would be driven by a properly licensed driver"). That inquiry wa s
A-4752-17
26
reasonably related in scope to the driver's suspended license, the circumstance
which justified the car stop in the first instance, and the subsequently
confirmed warrant for her arrest. Because the driver could not legally drive
the car away, it was reasonable for the officer to inquire whether defendant
was in a position to do so. See State v. Alston, 279 N.J. Super. 39, 46 (App.
Div. 1995) (noting officer could "reasonably have asked" passengers if they
could drive the car following arrest of the driver).9
Once defendant told the officer he wasn't a licensed driver, however, the
officer had no lawful basis, on these facts, to demand to see defendant's State
I.D. or to request his personal information. Our Supreme Court has made clear
"passengers are different from drivers," and New Jersey is more solicitous of
passengers' rights than is the federal government. State v. Bacome, 228 N.J.
94, 104-07 (2017) (tracing New Jersey's history of according auto passengers
more protections than federal law "consistent with [our Supreme] Court's
interpretation of the State Constitution to provide greater protection against
9
We doubt our further holding in Alston — that police could order passengers
out of a car after arrest of the driver in order to check the passengers' driving
credentials and ensure they were "physically capable of operating the vehicle,"
notwithstanding that circumstances did not demand "heightened awareness of
danger," 279 N.J. Super. at 45-46 — remains good law in light of the Court's
express admonition in State v. Bacome, 228 N.J. 94, 107 (2017), that "officers
may remove passengers only when the circumstances present reason for
heightened caution."
A-4752-17
27
unreasonable searches and seizures than the Fourth Amendment"). See also
State v. Smith, 134 N.J. 599, 617-18 (1994) (declining to extend to passengers
the per se rule of Pennsylvania v. Mimms, 434 U.S. 106 (1977), which permits
police to routinely order a driver to get out of the car following a routine
traffic stop).10 That's because we recognize a passenger, albeit seized along
with the driver, "has not engaged in the culpable conduct that resulted in the
vehicle's stop," giving rise to a passenger's "legitimate expectation" that he or
she will not be "further inconvenience[d] . . . by any intrusions beyond the
delay caused by the lawful stop." Smith, 134 N.J. at 615.
So, for instance, in New Jersey, although police may routinely ask a
driver stopped for a traffic violation to get out of the car, "an officer must be
able to point to specific and articulable facts that would warrant height ened
caution" to order a passenger to do so. Id. at 618. Our rule both respects the
passenger's privacy and liberty interests and acknowledges that passengers
may pose the same risk to a police officer's safety as would the driver. Id. at
612. If the police officer can point to specific facts that would cause a
reasonably prudent officer to exercise heightened caution when dealing with
the passengers, their suspicious movements in a car stopped on the Turnpike in
10
The United States Supreme Court extended the Mimms rule to passengers in
Maryland v. Wilson, 519 U.S. 408, 410 (1997).
A-4752-17
28
the middle of the night for instance, the intrusion on their liberty occasioned
by ordering them to step out of the car is justified under Article I, paragraph 7
of the New Jersey Constitution by the important concern for officer safety. Id.
at 618-19.
Applying that settled law to these facts, it is readily apparent the officer
asking whether defendant was a licensed driver was reasonable in light of the
driver's suspended license and traffic warrant. Further, if defendant had
declared himself a licensed driver who could drive the car away with the
owner's consent, it would have been reasonable and within the scope of the
stop for the officer to ask to see the license and to verify its validity in a
license lookup. See State v. Terry, 232 N.J. 218, 233 (2018) (noting the State's
"compelling interest in maintaining highway safety by ensuring that only
qualified drivers operate motor vehicles") (quoting Donis, 157 N.J. at 51). The
passenger at that point would be assuming the responsibilities of a driver,
diminishing his legitimate expectation of privacy by the altered balance
necessitated by the State's interest in highway safety. See United States v.
Brignoni-Ponce, 422 U.S. 873, 878 (1975) (explaining "the reasonableness" of
a "seizure" occasioned by a car stop depends, "[a]s with other categories of
police action subject to Fourth Amendment constraints, . . . on a balance
between the public interest and the individual's right to personal security free
A-4752-17
29
from arbitrary interference by law officers"). "Because of the State's extensive
regulation of its highways and thoroughfares, '[e]very operator of a motor
vehicle must expect that the State, in enforcing its regulations, will intrude to
some extent upon that operator's privacy.'" Donis, 157 N.J. at 51-52 (quoting
New York v. Class, 475 U.S. 106, 113 (1986)).
But we fail to see the justification for the officer demanding to see
defendant's State I.D. or requiring him to provide his name and date of birth
after defendant said he did not possess a driver's license, but only a State I.D.
Cf. State v. Chisum, 236 N.J. 530, 549-51 (2019) (holding police called to
motel for noise complaint had no basis to detain or run warrant checks on
occupants of motel room when police determined not to issue summons after
renter immediately turned the music down). Because defendant was not
seeking to drive the car away, there was no need to "confirm" defendant was
unlicensed or "make sure" the license defendant claimed not to have "wasn't
actually valid so [the officers] could turn the vehicle over to [defendant]," as
the officer testified. Defendant expressed no intent to operate the vehicle, and
he didn't need to be licensed in order to accept custody of it from the driver,
the registered owner.
Even in a stop and frisk where police focus is on the individual detained,
unlike with a hapless auto passenger, the Court has held police need
A-4752-17
30
reasonable suspicion in order to continue the detention to confirm an
individual's identity. State v. Coles, 218 N.J. 322, 346 (2014) (noting "[w]hile
individuals are not required to carry identifying documents on them at all times
in our free country, we accept that law enforcement acting under reasonable
suspicion of an individual can expend a brief but reasonable period of time to
confirm an individual's identity" while investigating a nearby, reported armed
robbery). The officer testified Boston had done nothing to arouse any
suspicion of wrongdoing. If police were concerned that defendant might drive
away following their departure, they could have simply taken custody of the
keys when they left for the station house with the driver or waited for
defendant's sister to arrive, as they did. See State v. Davis, 104 N.J. 490, 504
(1986) (noting the requirement for law enforcement to use "the least intrusive
investigative techniques reasonably available" under the circumstances to
justify the scope of the seizure).
Neither highway safety nor officer safety justified this intrusion on
defendant's legitimate expectation of privacy as a passenger in his wife's car.
Indeed, neither concern was implicated in any fashion. Like the defendant
passenger in Smith, the only justification for the intrusion on defendant's
privacy, here the demand for his identification, was his "untimely association
with the driver on the day the driver [was] observed committing a traffic
A-4752-17
31
violation," as a result of the officer's random selection of her license plate.
Smith, 134 N.J. at 615. In sum, the officers demanding to see Boston's State
I.D. and asking for his personal information after he told them he did not
possess a driver's license was not "reasonably related in scope to the
circumstances which justified the interference in the first place." Terry, 392
U.S. at 20.
We do not forge our own path in deciding the officers were not justified
in demanding identification from defendant here. We held nearly twenty years
ago in Hornberger v. Am. Broad. Cos., Inc., 351 N.J. Super. 577, 613 (App.
Div. 2002), that police may not request a passenger's identification after
stopping a vehicle for a routine traffic violation. There, police in Jamesburg
pulled over three young African-American men in a Mercedes-Benz after the
driver changed lanes without signaling. Id. at 585. Police demanded
identification from both the driver and his two passengers. Ibid. When the
backseat passenger told the officers he didn't have I.D., they ordered all three
young men "out of the car, frisked them, searched the car's interior, found no
contraband, and released them." Ibid. Unbeknownst to the officers, the young
men had been recruited by the producers of PrimeTime Live for a segment
called "DWB" (Driving While Black), and the entire stop had been captured by
hidden cameras. Id. at 585-86.
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32
Writing for the court, Judge King underscored the officers "did not
reasonably suspect the passengers of any crime when they demanded their
identification," noting "[t]he passengers had done nothing more suspicious
than riding in a car whose driver failed to signal a lane change." Id. at 611-12.
After carefully examining out-of-state authority on the question 11 and this
court's and the Supreme Court's precedents, Judge King wrote that finding
improper the officers' request for identification from passengers following a
routine traffic stop was the view "most consistent with our Supreme Court's
decision in [State v.] Carty12 and the prophylactic purpose of discouraging the
11
The court took particular note of a Massachusetts case, Commonwealth v.
Alvarez, 692 N.E.2d 106, 107-09 (Mass. App. Ct. 1998), in which
Massachusetts' intermediate appellate court held that requesting identification
from passengers in a car stopped for a traffic offense, without any objective
suspicion of criminality, violated that state's constitution and was "the sort of
request uncomfortably associated with authoritarian societies and most
commonly made of persons belonging to a racial or ethnic minority."
Hornberger, 351 N.J. Super. at 613 (quoting Alvarez, 692 N.E.2d at 109).
12
The Court in Carty affirmed Judge Pressler's opinion "that consent searches
following a lawful stop of a motor vehicle should not be deemed valid under
[State v.] Johnson, [68 N.J. 349, 353-54] unless there is reasonable and
articulable suspicion to believe that an errant motorist or passenger has
engaged in, or is about to engage in, criminal activity." 170 N.J. at 647. It
explained:
In other words, we are expanding the Johnson two-
part constitutional standard and holding that unless
there is a reasonable and articulable basis beyond the
initial valid motor vehicle stop to continue the
A-4752-17
33
police from turning a routine traffic stop into a 'fishing expedition for criminal
activity unrelated to the stop.'" Id. at 614 (quoting State v. Carty, 170 N.J.
632, 647 (2002)).
The State urges us to ignore our holding in Hornberger because it was
rendered in a civil case; it is at odds with our holdings in State v. Sirianni, 347
N.J. Super. 382 (App. Div. 2002), and State v. Hickman, 335 N.J. Super. 623(App. Div. 2000); "[t]he circumstances in Hornberger were quite different"
from those in this stop; and the case has been implicitly overruled by Sloane.
We reject each of those arguments as without merit. We discuss them in turn.
Litigants are not free to pick and choose among precedential holdings
based on which division of the trial court a suit was started. One need only
consider the Supreme Court's recent decision in Brown v. State, 230 N.J. 84,
detention after completion of the valid traffic stop, any
further detention to effectuate a consent search is
unconstitutional. A suspicionless consent search shall
be deemed unconstitutional whether it preceded or
followed completion of the lawful traffic stop. The
requirement of reasonable and articulable suspicion is
derived from our State Constitution and serves to
validate the continued detention associated with the
search. It also serves the prophylactic purpose of
preventing the police from turning a routine traffic
stop into a fishing expedition for criminal activity
unrelated to the stop. Indeed, our holding is consistent
with both the State Police Standard Operating
Procedures and the Consent Decree that was entered
into by the State Police on December 29, 1999.
A-4752-17
34
111-12 (2017), a civil case in which the Court announced that "law
enforcement officials may not rely on [Illinois v.] McArthur[, 531 U.S. 326(2001)]13 to enter an apartment to secure it while awaiting a search warrant,"
but instead "must get a warrant and, if reasonably necessary, may secure the
apartment for a reasonable period of time from the outside," to understand our
rejection of the State's first argument. That the Court declared the officers'
entry into Brown's home without a warrant unconstitutional in the context of a
civil suit against the officers who unlawfully entered her home and found no
contraband, instead of on a motion to suppress contraband seized in a criminal
case, does not make that holding — and the Court's instruction as to how law
enforcement is to secure a home while awaiting a warrant in this State in the
future — any less binding.
The State's second argument, that Hornberger is at odds with Sirianni
and Hickman, is simply incorrect. The State relies on Sirianni for the
proposition that "the rule is that a police request for identification does not, by
itself, constitute a seizure or detention within the meaning of the Fourth
Amendment." 347 N.J. Super. at 390. Seemingly true — by itself — but as in
13
The United States Supreme Court in McArthur held a warrantless seizure of
a person to prevent him from returning to his trailer to destroy marijuana
hidden inside was not "per se unreasonable" because "[i]t involve[d] a
plausible claim of specially pressing or urgent law enforcement need, i.e.,
'exigent circumstances.'" 531 U.S. at 331.
A-4752-17
35
any search and seizure case, context is critical. See Rosario, 229 N.J. at 273-
74 (noting officer's immediate request for the defendant's identification
"[a]lthough not determinative," reinforced the encounter was an investigative
detention and not a field inquiry) (citing State v. Egan, 325 N.J. Super. 402,
410-11 (App. Div. 1999) (holding officer's immediate demand for "driving
credentials" on approaching the defendant's parked van elevated field inquiry
into constitutional seizure)).
In Sirianni, we succinctly summed up the context for the statement the
State relies on from the opinion: "during a police stakeout to capture a
homicide suspect, defendant [Sirianni] pulls up at 2:20 a.m., parks his vehicle
directly across from the surveillance location, in a neighborhood in which he
apparently did not live, and remains in the car apparently observing police
activity." Id. at 391. We explained we had then only recently held in State v.
Stampone, 341 N.J. Super. 247 (App. Div. 2001), that a police officer could
approach an individual in a parked car, engage him in conversation and ask
him for identification, which the individual remained free to refuse. Sirianni,
347 N.J. Super. at 391. Seeing "no reason to depart from the general rule that
a request for identification does not, in and of itself, transform a field inquiry
into a Terry stop," the Sirianni court expressed its continued adherence "to the
general standard of reasonableness, measured against the totality of the
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36
circumstances including, in the mix, the seriousness of the criminal activity
and the degree of police intrusion involved." Ibid. Applying that standard, the
court found "the police officer's action in requesting identification from
[Sirianni] required no constitutional justification" and was "a reasonable and
proper course." Id. at 391-92.
We decided Sirianni only three months before we decided Hornberger.
Judge King, who wrote Hornberger, was aware of Sirianni of course and
indeed relied on it in holding that the officers' initial request for the
passengers' identification in Hornberger was unreasonable. Hornberger, 351
N.J. Super. at 612-13. Noting the very different circumstances present in
Sirianni, specifically, Sirianni driving his car after 2:00 a.m. into the middle of
a stakeout for a homicide suspect, where he appeared to watch the officers
from his parked car, Judge King readily agreed "that 'the officers would have
been derelict in their duties if they had failed to investigate'" Sirianni's
presence by asking who he was and what he was doing there. Id. at 612(quoting Sirianni, 347 N.J. Super. at 391).
In contrast, Judge King noted the officers who stopped the three young
African-American men in the Mercedes-Benz in Hornberger, "were not
investigating a crime, and there was no cause to suspect that the [three] were
armed, dangerous, or involved in any criminal activity." Hornberger, 351 N.J.
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37
Super. at 612. Even more important, he explained, "the court in Sirianni noted
that 'nothing in the encounter conveyed to [Sirianni] that he was not free to
refuse the officers' request,'" whereas in Hornberger, the backseat passenger
without I.D. "was not free to refuse the request: when he failed to produce his
identification, the officers ordered all of the occupants out of the car and
frisked them." Id. at 612-13. Judge King concluded that "[c]onsidering the
totality of these circumstances, in accordance with the principles expressed in
Sirianni, the initial request for the passengers' identification was unreasonable"
in Hornberger. Id. at 613.
The case before us, with defendant and his wife coming home from the
movies in Cherry Hill at 8:30 p.m. on a Saturday night with their three
children in the backseat, is obviously a great deal closer to the facts in
Hornberger than to those in Sirianni. But the critical factor that distinguishes
this case from Sirianni is the same thing that distinguished Sirianni from
Hornberger: defendant, like the backseat passenger in Hornberger, was
already lawfully seized when the officer demanded his identification, it wasn't
a voluntary encounter and he wasn't free to refuse the officer's request. 14 See
14
That makes this case and Hornberger much closer to Rosario, than to
Sirianni. The Court in Rosario found a person in a lawfully parked car outside
her home blocked in by a patrol car driven by an officer demanding her
identification and driver's license "would not reasonably feel free to leave."
A-4752-17
38
Rosario, 229 N.J. at 275 ("Case law tells people to obey words and deeds of
law enforcement that communicate demands for directed behavior and to raise
constitutional objections thereafter.").
Hornberger is not inconsistent or at odds with Sirianni; both cases were
judged using the same "general standard of reasonableness, measured against
the totality of the circumstances including, in the mix, the seriousness of the
criminal activity and the degree of police intrusion involved," Sirianni, 347
N.J. Super. at 391; Hornberger, 351 N.J. Super. at 613. The two cases simply
address very different factual scenarios, resulting in different legal
conclusions. See Stampone, 341 N.J. Super. at 252 (noting the evaluation of
an individual's encounter with police "is always fact-sensitive and similar
facts, when mixed and matched with other circumstances, will produce varying
legal conclusions").
The Court reversed our opinion, which had reasoned that because Rosario was
parked in front of her home, she was free to leave, thus making the encounter
(in accordance with Stampone) a field inquiry, which the officer's request for
her credentials didn't elevate to an investigative detention based on Sirianni.
Rosario, 229 N.J. at 266-67, 273, reversing State v. Rosario, No. A-0677-14
(App. Div. Mar. 10, 2016) (slip op. at 8). The Court stressed the totality of the
circumstances made the case "not analogous to the few cases in this state
addressing an officer's less dramatically begun, more casual and conversational
interactions with a person in a parked car, which have generally been viewed
as field inquiries involving a lesser degree of intrusiveness than a motor
vehicle stop." Id. at 274.
A-4752-17
39
Hickman is not at odds with our holding in Hornberger either. Hickman
was a passenger in a car stopped by police after midnight. Hickman, 335 N.J.
Super. at 628. When the officer confirmed the driver's license had been
revoked and he could not produce the car registration, the officer asked
defendant and another passenger if either possessed a valid license. Ibid. Both
said no. According to the officer, Hickman looked "extremely nervous,"
refusing to make eye contact and "shifting his weight from one side to the
other," prompting the officer to comment on Hickman's nervousness and ask if
he had "got something on [him] that [he] should surrender right now? Any
contraband, weapons, anything like that[?]" Ibid. Hickman told the officer he
had something in his shoe and surrendered a small bag of cocaine. Ibid.
We found the officer's brief questioning did not infringe on Hickman's
rights. Id. at 629. We wrote that because Hickman and the other passenger
told the officer that neither had a license, "and the driver could not produce a
registration or other evidence of ownership, [the officer] had an objectively
reasonable basis to detain the car and its occupants to assure that the car was
driven only by a properly licensed driver and to confirm that it was not stolen."
Hickman, 335 N.J. Super. at 635. See also State v. Terry, 232 N.J. at 222
(noting state law provides police the right to request proof of ownership from
the driver during routine traffic stop to ensure driver is not operating a stolen
A-4752-17
40
car). While noting that police may question occupants of a lawfully stopped
car, "even on a subject unrelated to the purpose of the stop, without violating
the Fourth Amendment, so long as such questioning does not extend the
duration of the stop," — the statement on which the State relies — we found
the officer had objectively reasonable suspicion that Hickman was involved in
some criminal activity to justify the questions. Hickman, 335 N.J. Super. at
636.
Specifically, we noted that because the driver didn't have a license or
registration or any other proof he owned the car Hickman was traveling in, it
was reasonable for the officer to conduct a further investigation "to determine
whether any of the other occupants owned or had permission to use the car,"
the "most obvious" method being "additional questioning." Id. at 637. When
Hickman responded to the officer's questions with unusual nervousness, we
saw a reasonable basis for the officer's enhanced suspicion, permitting him "to
broaden the scope of his inquiries." Ibid. Because the additional inquiry
regarding "possession of contraband or a weapon was brief and no more
intrusive than required to determine whether [Hickman] and his companions
were operating the car without permission of the owner or engaged in other
unlawful activity," we found the "inquiry satisfied the ultimate Fourth
A-4752-17
41
Amendment 'touchstone' of 'reasonableness.'" Id. at 638 (quoting Florida v.
Jimeno, 500 U.S. 248, 250 (1991)).
We find no inconsistency between our opinions in Hornberger and
Hickman. As with Sirianni, both cases were measured against the same
"touchstone" of "reasonableness" in view of the totality of the circumstances
confronting the officer. More important, the issue we addressed in Hornberger
was not police questioning a passenger to confirm or dispel some reasonable
suspicion, as in Hickman, it was demanding the passenger's identification
without any suspicion of wrongdoing, the same issue we confront here.
The State's third argument, that the facts in this case are too dissimilar to
Hornberger to warrant its application here, requires but brief comment. Unlike
Sirianni's field inquiry of an individual in a parked car in the vicinity of a
stakeout for a homicide suspect in the middle of the night, or Hickman's stop
of a driver without a license and no proof he either owned the car or was us ing
it with permission of the owner, the drivers of the cars pulled over in
Hornberger and in this case both produced license and registration to the
officer on request, although the driver's license here had been suspended on
account of a traffic warrant. In both cases, police demanded identification
from a passenger without any suspicion of criminal wrongdoing. While the
three young African-American men in Hornberger were subsequently ordered
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out of the car, frisked, and their car searched without consent, the officer
testified in that case that he ordered the occupants out of the car because the
backseat passenger "did not produce identification." Hornberger, 351 N.J.
Super. at 592. Far from being factually dissimilar, Hornberger to us appears
"on all fours."
Finally, we cannot agree with the State's assertion that we should reject
Hornberger because the Supreme Court implicitly overruled it in Sloane. As in
this case, the driver in Sloane was pulled over by police on the suspicion her
license was suspended. 193 N.J. at 426. She was driving a car owned by one
Carmichael, whose nephew, Sloane, was in the front seat. Ibid. When police
signaled the driver to pull over, she pulled into a parking spot across from
Carmichael's home. Ibid. She produced her driver's license in response to the
officer's request, and he confirmed it was suspended. The officer then "ran the
information through the NCIC database," found an outstanding warrant, and
arrested the driver. Ibid.When Sloane thereafter requested the keys to take to his uncle, the
officer asked to see his license. Ibid. Sloane claimed he didn't have it with
him, but provided the officer with his name, birthdate and social security
number. Ibid. Entering the information into his mobile data terminal, the
officer learned Sloane's license was also suspended. Id. at 426-27. While the
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officer was performing that task, another officer ran Sloane's information
through NCIC, finding a parole violation and two outstanding warrants. Id. at
427. Sloane was arrested, and a search incident at the station house revealed
crack cocaine in one of his shoes. Ibid.The Court held Sloane was seized at the time of the stop under the
federal and state constitutions, and that police do not need reasonable
suspicion before accessing the NCIC database. Id. at 426. "Because the
decision to check the NCIC database was within the scope of the traffic stop
and did not unreasonably prolong" it, the Court found no basis to suppress the
evidence recovered in the search incident to Sloane's arrest. Ibid.The State's basis for arguing that Hornberger has been implicitly
overruled is the Court's holding in Sloane that "an NCIC check is not a search
under the federal or state constitutions" because an individual has "no
reasonable expectation of privacy in the public records maintained in NCIC."
Id. at 436-37. Thus, police do not need reasonable and articulable suspicion of
criminal activity to access the NCIC database. Ibid.But the State overlooks the Court's further discussion of whether there
are "other constitutional concerns when police access the NCIC database
during a traffic stop[.]" Id. at 437. Writing for the Court, the Chief Justice
explained "[t]hat question turns on the reasonableness of the detention
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following a lawful traffic stop in two interconnected respects. First, was the
detention 'reasonably related in scope to the circumstances which justified the
interference in the first place?'" Ibid. (citing Dickey, 152 N.J. at 476 (quoting
Terry, 392 U.S. at 20)). "Second, did the NCIC check unreasonably prolong
the length of the stop?" Ibid. (citing United States v. Sharpe, 470 U.S. 675,
685 (1985) ("in evaluating whether an investigative detention is unreasonable,
common sense and ordinary human experience must govern over rigid
criteria")).
Considering the first criterion, the Chief Justice noted "[m]any
jurisdictions have found that running an NCIC check, in addition to a driver's
license check, is within the scope of a traffic stop and is permissible so long as
it does not unreasonably extend the time of the stop." Ibid. He further noted
"[t]hat rule has also been applied to NCIC checks of passengers when there
was a basis for police to focus on the passenger." Id. at 438 (emphasis added)
(citing State v. Higgins, 884 P.2d 1242, 1245 n.2 (Utah 1994) (license check
on passenger looking to drive the car away permissible and warrant check did
not significantly extend the time necessary to run license check); State v.
Mennegar, 787 P.2d 1347, 1351-52 (Wash. 1990) (finding check of passenger's
driver's license, which revealed outstanding arrest warrant, valid where
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45
passenger was asked to drive car), overruled on other grounds, State v. Hill,
870 P.2d 313, 315 (Wash. 1994)).
The basis for police to focus on Sloane was his request for the car keys
following the driver's arrest. The Court found specifically that "after Sloane
asked for the keys to the car, it was reasonable for the officer to ask Sloane for
identification to insure that the car would be driven by a properly licensed
driver." Id. at 432. Because checking Sloane's license was within the scope of
the stop after Sloane asked for the car keys, and the NCIC check, for which no
reasonable suspicion was required, was performed at the same time, thus not
adding appreciably to its length, the Court held "police acted within the
boundaries of the federal and state constitutions throughout the traffic stop."
Id. at 439.
In deciding Hornberger, we did not discuss either license checks or
NCIC checks. We held only that the request for the passengers' identification
following a routine traffic stop without any reasonable suspicion of criminal
activity was improper. Hornberger, 351 N.J. Super. at 614. Far from
overruling Hornberger, the Court's decision in Sloane reinforces its vitality.
Sloane makes clear a demand for a passenger's identification or check of his
license is permitted when police have a basis for focusing on the passenger.
193 N.J. at 438-39. In Sloane, a demand for the passenger's license and
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46
identification was permissible because he asked police to give him the car
keys, making it "reasonable for the officer . . . to insure that the car would be
driven by a properly licensed driver." Id. at 432. In Hornberger, a similar
demand was deemed unreasonable because police had no basis for focusing on
the passengers. The driver in Hornberger produced a valid license and
registration and police "did not reasonably suspect the passengers of any crime
when they demanded their identification. The passengers had done nothing
more suspicious than riding in a car whose driver failed to signal a lane
change." 351 N.J. Super. at 611-12. Search and seizure cases are notoriously
fact-sensitive. That "similar facts, when mixed and matched with other
circumstances, will produce varying legal conclusions," Stampone, 341 N.J.
Super. at 252, do not make cases inconsistent.
Sloane continued the Court's greater solicitude for a passenger's privacy
and liberty interests, consistent with officer safety, begun in Smith, 134 N.J. at
617 (declining to extend the per se rule of Mimms to passengers), continued in
State v. Mai, 202 N.J. 12, 22 (2010) (seeing "no reason to depart from the
elegant reasoning" of Smith in ruling police may open passenger-side door
only on showing of heightened awareness of danger), and more recently
retraced in Bacome, 228 N.J. at 106 (noting "[n]o decision since Smith,
including Sloane, has implicitly or explicitly modified or overruled [the]
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decision in Smith" that "officers may remove passengers only when the
circumstances present reason for heightened caution"). Our courts continue to
recognize "that passengers are different from drivers 'because the passenger
has not engaged in the culpable conduct that resulted in the vehicle's stop.'"
Bacome 228 N.J. at 105 (quoting Smith, 134 N.J. at 615).
As our Supreme Court has held, a passenger in a car lawfully stopped by
police "has a legitimate expectation that no further inconvenience will be
occasioned by any intrusions beyond the delay caused by the lawful stop."
Smith, 134 N.J. at 615. We do not accept the brief questioning of a passenger
we permitted in Hickman to encompass a police officer's request to see a
passenger's driver's license or other identification in the absence of
particularized suspicion following a routine traffic stop. See Hornberger, 351
N.J. Super. at 613.
Our rationale for permitting the questioning of a passenger during the
course of a routine car stop in Hickman was that the passenger was free not to
answer the officer's questions. See Hickman, 335 N.J. Super. at 636-37
(explaining "appellants cannot complain of questioning that took place during
the pendency of a computer check. While appellants were under no obligation
to answer the questions, the Constitution does not forbid law enforcement
officers from asking") (quoting United States v. Shabazz, 993 F.2d 431, 437
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48
(5th Cir. 1993)). 15 But as we held in Hornberger and the Court made clear in
Rosario, that's not true of a request or demand for I.D. after the individual is
seized.
15
That rationale has in the years since Hickman was published been somewhat
undermined by the United States Supreme Court's decision in Hiibel v. Sixth
Judicial Dist. Court, 542 U.S. 177 (2004), upholding Nevada's "stop and
identify" statute. The Court acknowledged it had since Terry "recognized that
a law enforcement officer's reasonable suspicion that a person may be involved
in criminal activity permits the officer to stop the person for a brief time and
take additional steps to investigate further," including by asking a suspect to
identify himself, see e.g, Hayes v. Florida, 470 U.S. 811, 816 (1985), but noted
"it has been an open question whether the suspect can be arrested and
prosecuted for refusal to answer." Hiibel, 542 U.S. at 185-87. But see
Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984) (stating an officer
conducting a Terry stop "may ask the detainee a moderate number of questions
to determine his identity and to try to obtain information confirming or
dispelling the officer's suspicions. But the detainee is not obliged to respond.
And, unless the detainee's answers provide the officer with probable cause to
arrest him, he must then be released.").
The Court in Hiibel answered that "open question" by holding the Fourth
Amendment did not prohibit a state from arresting and prosecuting an
individual under state law for refusing to give his name in a Terry stop. 542
U.S. at 187-88. Important for our purposes, however, is the Court's
underscoring that "an officer may not arrest a suspect for failure to identify
himself if the request for identification is not reasonably related to the
circumstances justifying the stop," because of Terry's requirement that "a
Terry stop must be justified at its inception and 'reasonably related in scope to
the circumstances which justified' the initial stop." Id. at 188-89 (quoting
Terry, 392 U.S. at 20). Because the request for Boston's identification after he
unequivocally told the officers he was not a licensed driver was not
"reasonably related in scope to the circumstances which justified the initial
stop," Hickman's rationale does not support the request for identification from
Boston here even without reference to our Supreme Court's holdings in
Rosario and Sloane.
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49
Because a passenger during even a routine traffic stop in New Jersey is
not free to ignore an officer's direction to produce his driver's license or other
identification, the rationale relied on by the State to support questioning a
passenger — that because the passenger is under no obligation to answer, the
officer is free to ask — cannot justify the intrusion. That the passenger has
already been detained as a result of the lawful stop of the driver is also not
sufficient justification to further intrude on his privacy by a demand that he
produce a driver's license or other identification in the absence of some basis
for police to focus on the passenger. See Sloane, 193 N.J. at 438-39; cf. Carty,
170 N.J. at 640 ("[t]he fact that the motorist already has been detained at the
point when an officer asks for consent to search is not dispositive of whether a
suspicionless search should be allowed to continue").
Following the Court's reasoning in Smith, because "the only justification
for the intrusion on the passenger's privacy," here the request for his State I.D.
and personal information, "is the untimely association with the driver on the
day the driver is observed committing a traffic violation," a routine request for
identification from a passenger is a greater intrusion on the passenger's privacy
than it is on the driver's privacy. 134 N.J. at 615. Absent some "basis for
police to focus on the passenger," Sloane, 193 N.J. at 438, a request for
identification, which the passenger is not at liberty to refuse, is an
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unreasonable interference with his "legitimate expectation" that he will suffer
"no further inconvenience . . . by any intrusions beyond the delay caused by
the lawful stop," and unlawful, Smith, 134 N.J. at 615.
Although the State makes much of the presence of the couple's children
in the backseat, writing in the first lines of its brief that "the lawful and well -
intentioned conduct of . . . [the] officers . . . ensured the safety of [our] most
vulnerable citizens, children," we don't find the children's presence changes
the analysis here. There is nothing in this record to indicate the children were
at any risk left in defendant's custody.
As evidenced by the officer's statement to defendant quoted at the top of
this opinion, the car was "on a [residential], municipal road," and properly
parked, "not in the middle of the road or anything like that." Before running
his identification, the officer appeared to have no concern about leaving the car
and the children in defendant's custody, telling him: "Obviously, if you don't
have a license, I'm not going to tell you you are allowed to drive or whatever.
But you have a cell phone on you, right? You can start to make arrangements,
okay. I trust you, you are an adult." The driver, defendant's wife, th e woman
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51
police presumed to be the children's mother, expressed no concern with that
arrangement.16
The car was safely parked, defendant's wife, the registered owner of the
car, was satisfied to leave her car and their children in defendant's care,
defendant had a working cell phone and family nearby who could come, take
custody of the car and drive defendant and the children to the station house,
which was only a mile or so away. Indeed, defendant's sister and another
person, possibly his brother, arrived shortly after he called them, and his sister
drove defendant's wife's car with the children to the station house, while the
other person followed.17
The State does not suggest the officers had any reason to doubt
defendant and his wife were not the children's parents. Indeed, the officer
testified at the suppression hearing he waited to handcuff defendant until his
sister arrived so he wouldn't have to arrest defendant "in front of his children,"
16
The video makes clear the driver became concerned about the children's
welfare only when she was advised that defendant was also being arrested.
17
While police had defendant's sister execute a juvenile release form before
letting her drive the Hyundai to the station house, there is nothing in the record
to suggest the officers were preparing such a form for defendant to take
custody of his own children.
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52
a fact that judge remarked on in her ruling. 18 We do not suggest the officers
could not seek to verify a child in an individual's custody was the person's
child and safe in his care under other circumstances. Alert and quick-witted
officers have saved children from adults intending them harm before. See,
e.g., State v. Parker, 503 A.2d 809, 812 (N.H. 1985) (car stop based on
officer's reasonable suspicion a child he saw inside camper was abused or
abducted).
But these officers had no objective basis for any reasonable suspicion of
risk to the children here, and a rule permitting officers to run identification
checks on any passenger in a stopped car with children inside would represent
a serious intrusion with no apparent commensurate benefit. Cf. Chisum, 236 at
551 (holding "it would be both burdensome and problematic if at every public
18
The judge also commented on the officers' good faith, which the State
stresses in its brief. We have no reason to doubt the officers' good faith. We
have not commented on the testifying officer's credibility, which we are in no
position to judge, and accept he may have simply forgotten he asked defendant
for his driver's license in the first minutes of the stop and when told defendant
did not have a license but only a State I.D., demanded to see it. We also note
an apparent exchange in the video after defendant's arrest, which is not well -
captured in the transcript, in which defendant apparently asks the officers not
to tell his wife "he's using again," and the officers assure him they would not
tell her, and that what he told her was up to him. Although the video makes
clear the officers conducted themselves with the utmost professionalism and
goodwill throughout, our inquiry is focused on whether they acted lawfully,
which the officers' good faith will not change. See State v. Arthur, 149 N.J. 1,
8 (1997) (noting an arresting officer's subjective good faith cannot justify an
infringement of a citizen's constitutionally guaranteed rights).
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53
gathering where a noise complaint was reported, responding police officers
would be allowed to detain and run warrant checks on each and every
individual in attendance"). Indeed, the State does not offer how a license
lookup would have confirmed defendant was the children's father and they
were safe in his care, or how that investigative method was "the least intrusive
means reasonably available to verify or dispel the officer's suspicion in a short
period of time." Davis, 104 N.J. at 502 (quoting Florida v. Royer, 460 U.S.
491, 500 (1983)). The community-caretaking doctrine, on which the State
relies, has never been applied so broadly. See State v. Edmonds, 211 N.J. 117,
143 (2012) (instructing "[t]he community-caretaking doctrine is an exception
to the warrant requirement, not a roving commission").
Our holding is simple. In a routine traffic stop where the driver has to
be arrested on an open traffic warrant, the officer's asking whether a passenger
is a licensed driver is reasonable; but when the passenger claims he does not
possess a license, the officer's further demand for identification from the
unlicensed passenger in the absence of particularized suspicion is not.
Because we conclude the officers' demand for defendant's State I.D. and
their request for his personal information exceeded the scope of this routi ne
traffic stop, defendant's subsequent arrest on the open traffic warrant was
unlawful, and the drugs seized in the ensuing search incident to his arrest
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54
should have been excluded at trial. See Maryland, 167 N.J. at 489 (explaining
application of the exclusionary rule to the fruits of an unlawful stop). We
accordingly reverse defendant's conviction for third-degree possession of
cocaine. Our disposition makes unnecessary any discussion of defendant's
remaining points. 19
Reversed.
19
Because we have reversed defendant's conviction, we have no need to
review his arguments addressing his seven-year extended term sentence with
three-and-a-half years of parole ineligibility for possession of approximately
one gram of cocaine, including the court's rejection of mitigating factors one
and two, because "[t]he sale and/or possession of CDS is not a victimless
crime." We have, however, cautioned before about the perils of the "and/or"
construction for courts and judges. See State v. Gonzalez, 444 N.J. Super. 62,
71 (App. Div. 2016) (noting "[t]he imprecision of the phrase 'and/or' and
criticism for its use here and in other jurisdictions has been well-
documented"). We perceive employing it so as not to distinguish between the
possession and distribution of CDS to support a sentence where defendant is
charged only with a possession offense and has argued for application of
mitigating factors one and two could be problematic. See State v. Cullen, 351
N.J. Super. 505, 511 (App. Div. 2002) (explaining those factors relate to the
seriousness of the offense rather than the background and character of the
offender). We likewise have no occasion to address whether the court's
conclusion that defendant "demonstrated that [he is] a true menace to society,
and that the public will only be safe from [him] if [he is] in jail" in imposing
sentence on this third-degree possessory offense is supported by the record.
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