STATE OF NEW JERSEY VS. JOHN J. CANTALUPO (13-07-1772, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4142-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN J. CANTALUPO, a/k/a
JOHN J. CANTALUPO, JR.,
Defendant-Appellant.
______________________________
Argued December 19, 2018 – Decided January 8, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 13-07-1772.
Thomas M. Cannavo argued the cause for appellant
(Steven W. Hernandez, attorney; Thomas M. Cannavo,
of counsel and on the brief).
William K. Meighan, Senior Assistant Prosecutor,
argued the cause for respondent (Bradley D. Billhimer,
Ocean County Prosecutor, attorney; Samuel
Marzarella, Chief Appellate Attorney, of counsel;
William K. Meighan, on the brief).
PER CURIAM
Defendant John J. Cantalupo appeals from a March 29, 2017 order after a
bench trial in which he was found guilty of possession of a controlled dangerous
substance (CDS) in an automobile, N.J.S.A. 39:4-49.1; driving while intoxicated
(DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; failure to wear a
seatbelt, N.J.S.A. 39:3-76.2(f); failure to observe traffic signals, N.J.S.A. 39:4-
81; and third-degree possession of Phencyclidine (PCP), N.J.S.A. 2C:35-
10(a)(1). As part of his sentence, defendant received three years of probation
with 180 days in jail, but the court suspended 150 days of the jail time imposed.
We affirm the convictions, but reverse and remand the sentence in accordance
with this opinion.
The following facts are taken from the record. On January 12, 2013, Toms
River Police Sergeant Daniel Sysol observed a vehicle operated by defendant
moving unusually slow and well below the speed limit, traveling southbound on
Vermont Avenue toward the intersection with Cox Cro Road. Sysol followed
the vehicle, which stopped briefly at a red light before making an illegal left-
hand turn on red.
When Sysol stopped the vehicle he noted defendant was not wearing his
seatbelt. Defendant was moving slowly, fumbled his credentials, spoke with
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slurred speech, and his pupils were unusually constricted. Sysol requested
defendant exit the vehicle and observed he was moving slowly and having
difficulty standing and walking without falling or swaying from side -to-side.
Sysol requested a Drug Recognition Expert ("DRE") assist in the investigation.
Officer Steven Schwartz, a DRE, responded. He also observed
defendant's pupils were constricted and noted he had difficulty maintaining his
balance. Additionally, he detected a strong chemical odor on defendant's breath.
Schwartz requested defendant perform a field sobriety test.
Schwartz had defendant perform a Horizontal Gaze Nystagmus ("HGN")
test. Schwartz testified defendant's eyes did not follow his finger smoothly and
his body swayed from side-to-side, which were signs of impairment. Schwartz
next conducted a walk-and-turn-test, which defendant also struggled to perform.
Defendant stumbled several times, had difficulty maintaining his balance, held
his arms out horizontally for balance, failed to touch his toe to heel as he took
each step, and took more steps than directed. Schwartz also directed defendant
to perform a one-leg-stand test, but he was unable to raise his foot off the ground
without losing balance.
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Defendant was arrested for DWI, read his Miranda1 warnings, and placed
in a police vehicle. Prior to transporting defendant's vehicle from the scene,
Schwartz illuminated its interior and observed a small glass vial positioned
between the center console and the driver's seat. Schwartz testified the vial
looked similar to an eyedropper glass with a black cap, and believed it contained
CDS based on its appearance and the chemical odor on defendant's breath.
Schwartz observed the contents of the vial were a brown liquid substance with
floating vegetative matter. Subsequent laboratory testing on the vial revealed it
contained PCP.
At the police station, defendant was read his Miranda warnings a second
time, and signed a waiver form. An Alcotest indicated a blood alcohol content
of 0.0. As a result, Schwartz performed a full DRE to determine the source of
defendant's impairment. He conducted another HGN test, which defendant
failed. He also conducted a lack of convergence ("LOC") test where defendant
was instructed to follow the officer's fingertip as it was moved toward
defendant's nose. Defendant's eyes remained focused straight ahead and did not
converge on the officer's fingertip, which was a sign of intoxication.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Defendant was also asked to stand with his feet together, close his eyes,
tilt his head backward, and estimate the passage of thirty seconds without
counting aloud. Although defendant was able to count for twenty-seven
seconds, he swayed in a circular motion throughout the test.
Schwartz conducted another one-leg-stand test during which defendant
failed to maintain his balance. He also performed a dark room test to observe
how defendant's pupils adjusted to light. Defendant's pupil constriction was
slow. Defendant's blood pressure was elevated, and his body temperature was
below normal during the testing. However, his muscle tone was normal and he
showed no signs of injection sites or drug residue in the mouth or nose.
Schwartz interviewed defendant as a part of the DRE. He testified
defendant still had a chemical odor on his breath, spoke in slurred speech, and
admitted to smoking a cigarette dipped in PCP approximately fifteen minutes
before he was stopped. Defendant also admitted he had taken Percocet earlier
in the day because he was experiencing shoulder pain. Defendant consented to
providing a urine sample, which tested positive for oxycodone and PCP.
We next recite the extensive pre-trial timeline and motion practice, which
occurred in this case, because it bears on the issues raised in the appeal.
Defendant incurred the motor vehicle charges in January 2013, and was indicted
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for the drug possession charge in July 2013. On July 25, 2013, the State offered
to recommend probation with 364 days in jail, in return for defendant's entry of
a guilty plea with respect to the DWI and CDS charges. Defendant did not enter
into a plea and was subsequently arraigned in September 2013.
On June 23, 2014, the State hand-delivered the urinalysis report to
defendant. In January 2015, defendant filed a motion to dismiss the indictment
and the charges on speedy trial grounds. The motion was denied in February
2015.
On March 18, 2015, the State requested a plea cutoff date and a trial date.
Five days later, defendant requested the State agree to a conditional plea, which
would have allowed him to plead guilty to the indictable offense while
preserving his right to appeal the denial of the speedy trial motion. The State
rejected the request.
In April 2015, defendant filed a motion to stay the imposition of the
sentence and to set bail in the event of a conviction. In May 2015, defense
counsel advised the court defendant would likely plead guilty and requested the
motion be adjourned until after the plea.
On May 18, 2015, defendant retained new counsel, who filed a motion to
suppress the urinalysis and field sobriety tests the following day. The court
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heard extensive testimony on the motion on October 15, October 28, and
November 12, 2015, and ultimately denied it on December 1, 2015.
On January 4, 2016, defendant renewed the request for a conditional plea,
which the State rejected. On January 29, 2016, he filed a motion to compel the
conditional plea over the State's objection, which the court denied on February
22, 2016.
A plea cutoff date was set for March 15, 2016, and a trial date was set for
September 13, 2016. A month before trial, defendant moved to sever the motor
vehicle offenses from the indictable charge. A day later he filed another motion
raising seven arguments, none of which are raised on appeal.
On September 9, 2016, defendant made a third request for a conditional
plea, which was rejected. Because a new trial judge was assigned to the case,
the trial date was converted into a status conference with that judge, who set
trial for October 25, 2016.
On September 15, 2016, defendant requested an adjournment of the trial
because his expert was unavailable to testify. On September 20, 2016, he filed
a motion for reconsideration of the conditional plea and the speedy trial
determinations. The motions were argued on October 11 and October 14, and
denied on October 26, 2016.
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Defendant filed a motion for leave to appeal from the denial of
reconsideration. We denied the motion on December 19, 2016.
Defendant waived his right to a jury trial. The trial commenced in
February 2017 and continued into March 2017. The trial judge found defendant
guilty on all charges and sentenced defendant in May 2017. This appeal
followed.
Defendant raises the following points:
POINT I – THE LAW DIVISION ERRED IN
DENYING THE INITIAL SPEEDY TRIAL
DISMISSAL MOTION. THUS, ALL CHARGES
SHOULD BE DISMISSED.
POINT II – EVEN IF THE INITIAL SPEEDY TRIAL
MOTION WERE CORRECTLY DENIED, THE
ADDITIONAL DELAY DUE TO THE STATE'S
ARBITRARY REFUSAL TO ALLOW A
CONDITIONAL PLEA VIOLATED DEFENDANT'S
SIXTH AMENDMENT AND ART. 1, PAR. 10
SPEEDY TRIAL RIGHTS, MANDATING
DISMISSAL OF ALL CHARGES WITH PREJUDICE.
POINT III – GIVEN THE LACK OF REASONABLE
SUSPICION TO PERFORM PSYCHOPHYSICAL
TESTS AT THE SCENE PURSUANT TO STATE V.
BERNOKEITS, THE LAW DIVISION ERRED IN
FAILING TO SUPPRESS ALL EVIDENCE SEIZED
OR OBSERVED AS FRUIT OF THE POISONOUS
TREE. THUS, DEFENDANT SHOULD BE
ACQUITTED OF ALL CHARGES ARISING AFTER
THE MOTOR VEHICLE STOP.
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POINT IV – THE LAW DIVISION ERRED IN
DENYING THE MOTION TO SUPPRESS THE CDS
FOUND IN THE MOTOR VEHICLE UNDER THE
DOCTRINE OF PLAIN VIEW. THUS, THE
DEFENDANT MUST BE ACQUITTED OF THIRD[-]
DEGREE CDS POSSESSION.
POINT V – THE LAW DIVISION ERRED IN
DENYING THE MOTION TO SUPPRESS THE
URINE TEST RESULTS AS A WARRANTLESS
SEARCH INCIDENT TO ARREST.
POINT VI – THE LAW DIVISION ERRED IN
DENYING THE MOTION TO SUPPRESS THE
WARRANTLESS SEIZURE AND TESTING OF
DEFENDANT'S URINE PURSUANT TO EXIGENT
CIRCUMSTANCES.
I.
Defendant challenges the trial court's denial of his motions to dismiss. He
argues the State violated his right to a speedy trial because nine months elapsed
before the State provided the urinalysis.
We owe no special deference to the "trial court's interpretation of the law
and the legal consequences that flow from established facts." Manalapan Realty,
LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). However, we will
reverse the denial of a motion to dismiss a complaint on the grounds it violates
a defendant's constitutional right to a speedy trial only if it is "clearly
A-4142-16T2
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erroneous." State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009) (citing
State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)).
The Sixth Amendment of the United States Constitution affords a
defendant the right to a speedy trial on criminal charges; through the Due
Process Clause of the Fourteenth Amendment, that right is applicable in state
prosecutions. Klopfer v. North Carolina, 386 U.S. 213, 222-26 (1967); see State
v. Szima, 70 N.J. 196, 200-01 (1976). The speedy-trial right protects a
defendant's interest in minimizing "pretrial incarceration," the accused's pretrial
"anxiety and concern," and delay that impairs the ability to present a defense.
Barker v. Wingo, 407 U.S. 514, 532-33 (1972). Alleged violations of the
speedy-trial right are assessed by balancing four factors set forth in Barker,
which "requires the court to consider: (1) the length of the delay, (2) the reasons
for the delay, (3) whether and how defendant asserted his speedy trial right, and
(4) the prejudice to defendant caused by the delay." State v. Townsend, 186 N.J.
473, 487 (2006); see also Barker, 407 U.S. at 530-34.
In applying the four-part test, "[n]o single factor is a necessary or
sufficient condition to the finding of a deprivation of the right to a speedy trial."
Tsetsekas, 411 N.J. Super. at 10 (citing Barker, 407 U.S. at 533). "Rather, the
factors are interrelated," and a fact-sensitive analysis is necessary so that each
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factor is "considered in light of the relevant circumstances of each particular
case." Ibid. The significance of the length of delay will depend upon the factual
circumstances of the particular case, including the nature of the proceedings.
Barker, 407 U.S. at 530-31. Additionally:
Closely related to length of delay is the reason
the government assigns to justify the delay. Here, too,
different weights should be assigned to different
reasons. A deliberate attempt to delay the trial in order
to hamper the defense should be weighted heavily
against the government. A more neutral reason such as
negligence or overcrowded courts should be weighted
less heavily but nevertheless should be considered since
the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant.
Finally, a valid reason, such as a missing witness,
should serve to justify appropriate delay.
[Id. at 531.]
Here, defendant's argument is solely related to the length of the delay
prong of the Barker test. Defendant does not dispute the material facts of the
case, and instead asserts the court misinterpreted the applicable law.
The trial court found as follows:
In the case at hand, [d]efendant was indicted in
July 2013, [nineteen] months ago. The State provided
discovery to the defense on July 16, 2013. Arraignment
was held September 3, 2013, at which point the defense
asserts it informed the State that they were missing
urinalysis reports. The State hand-delivered those
reports on June 23, 2014. Thus, the reports were
A-4142-16T2
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initially requested in September 2013[,] and were
provided nine months later, in June 2014.
At oral argument, the prosecutor relied primarily
on her brief. She asserted that she received a letter from
defense counsel in November 2013[,] requesting
additional discovery, and that the next court date was
adjourned because the defendant wanted more time to
prepare. The prosecutor also noted that a formal
discovery request sent by defense counsel in January
2014[,] never mentioned an outstanding urinalysis
report.
Although defense counsel argued that he does not
base his motion solely upon the delay in obtaining the
urinalysis report, his claim does in fact center on that
report. Defense counsel obtained other discovery items
[he] requested during the time [he] waited for the
urinalysis report. In the view of this [c]ourt, nine
months is not an excessively long time to wait for the
results of a laboratory test, as laboratories can often
take several months to issue their reports.
The trial court's fact-sensitive findings were sound and not clearly
erroneous. The court determined the delay in the return of the urinalysis results
was not excessive by acknowledging the pace at which such results are generally
returned can be unpredictable. Defendant cites no legal basis for us to conclude
the court erred as a matter of law.
Next, defendant argues his speedy-trial right was violated because the
State was obligated to accept his request for a conditional plea. He asserts "the
conditional plea procedure is designed to prevent waste of defense, State[,] and
A-4142-16T2
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judicial resources on needless trial[,]" and "the delay and expense of forcing a
trial with experts is the very harm and harassment of defendants which
constitutes prejudice in the speedy trial context." Defendant claims the court
should have "relaxed the conditional plea rule and allowed the procedure over
the State's objection and that the State's decision to reject a conditional plea was
arbitrary and prejudicial." He argues the length and reason for delay prongs of
the Barker test are satisfied because the delay in excess of one year was
attributable to the State, which compelled him to file three requests for a
conditional plea.
"Generally, a guilty plea constitutes a waiver of all issues which were or
could have been addressed by the trial judge before the guilty plea." State v.
Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). The waiver even applies
to claims of certain constitutional violations. State v. Knight, 183 N.J. 449, 470
(2005) (citing State v. Crawley, 149 N.J. 310, 316 (1997)). However, there are
generally only three exceptions to the waiver rule. Id. at 471; see State v.
Wakefield, 190 N.J. 397, 417 n.1 (2007). Pertinent here, is the exception which
permits a defendant to appeal adverse decisions specifically reserved by a
conditional guilty plea entered in accordance with Rule 3:9-3(f). Knight, 183
N.J. at 471.
A-4142-16T2
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Rule 3:9-3(f) requires that a defendant satisfy several conditions before a
conditional guilty plea can be accepted. "[A] defendant may plead guilty while
preserving an issue for appellate review only with the 'approval of the court and
the consent of the prosecuting attorney.'" State v. Gonzalez, 254 N.J. Super.
300, 304 (App. Div. 1992) (emphasis added) (quoting R. 3:9-3(f)). This
reservation of "the right to appeal from the adverse determination of any
specified pretrial motion" must be placed "on the record." R. 3:9-3(f). The Rule
imposes no affirmative obligation on the State to accept an offer of a conditional
guilty plea and does not permit the court to compel acceptance of such a plea
over the State's objection. Ibid.Here, the trial court addressed the issue and found as follows:
This court is bound by Rule 3:9-3(f). A
conditional plea will only be accepted if the court
approves it and the prosecutor trying the case has no
objection. It has been made abundantly clear through
plea negotiations, briefs, and oral arguments that the
State is not willing to accept a conditional plea. The
State has explicitly made clear that they wish to proceed
to trial or alternatively accept a non-conditional plea.
The court is guided by State v. Giddings, in that while
the type of motion the [d]efendant seeks to reserve is
the purpose of R[ule] 3:9-3(f) the court will not find it
so unique as to excuse clear failure to comply with the
rule.
This court understands the [d]efendant's request
pursuant to R[ule] 1:1-2[,] but determines that R[ule]
A-4142-16T2
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3:9-3(f) is explicitly accepted. The [d]efendant does
bring forth cases in which this rule was relaxed but the
court agrees with the State that these cases are not
applicable to the [S]uperior [C]ourt's decisions. Many
of the cases cited by the [d]efendant refer to what
happened due to the lack of a conditional plea as
opposed to enforcing a conditional plea upon the State.
As such, the rule remains explicitly accepted that unless
both the court and the Prosecutor agree to a conditional
plea, a conditional plea cannot be created while the
Prosecutor objects.
On reconsideration the court elaborated further and stated
the court is not persuaded that the New Jersey Court
Rules grant[] the [c]ourt the authority to compel a
conditional plea. In fact, the court acknowledges that
any attempt to compel the State into acceptance of a
conditional plea would be an improper invasion into the
realm of the executive and a breach of the separation of
powers doctrine. Accordingly, the [c]ourt finds the
defendant's argument is without sufficient legal
authority or merit.
Additionally, this court has found no legal
authority which would allow defendant to plea open-
ended to all his charges and reserve his right to argue
his speedy trial motion on appeal. The court
acknowledges the ruling in Knight, which provided
only three exceptions to the general rule that all of a
defendant's constitutional challenges are waived upon
the entry of an open-ended guilty plea. The Knight
exceptions are: [a]ppeals to the denial of Fourth-
amendment based motions, appeals to the denial of
admission into a pretrial intervention program, and
appeals of issues that are preserved via the conditional
plea process. The court acknowledges that no
A-4142-16T2
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conditional plea has been offered by the State nor can
be compelled in this case.
We agree with the court's assessment. The law cited by defendant
pertained to instances where we relaxed Rule 3:9-3(f), pursuant to Rule 1:1-2,
to permit defendants to raise issues on appeal which would otherwise have been
prohibited for failure to enter a conditional plea. We did not relax the
requirement that consent from the State and approval from the court were
necessary under Rule 3:9-3(f) for a conditional plea. See State v. J.M., 182 N.J.
402, 410 (2005).
Since the State was not required to agree to a conditional plea, and the
trial court was not required to accept one over the State's objection, it follows
that defendant's speedy-trial rights were not violated. Indeed, as the trial court
noted:
The State's refusal to consent to a conditional plea
should not constitute an unreasonable delay of trial
requiring dismissal. The court notes that the State has
requested trial dates on [four] separate occasions,
however each time trial is scheduled the defendant
submits another motion. This should not constitute a
delay by the State. The court does note that the delay
attributable to [the prior judge]'s departure from the
bench cannot be held against the defendant because it
was not the defendant who caused this delay. The same
can be said of the State, in that regard, therefore the
delay caused by [the judge]'s departure cannot [b]e held
against the State either. The court cannot force the
A-4142-16T2
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State into acceptance of a conditional plea, and the
court is not persuaded that the State's refusal to grant
consent constitutes an unreasonable delay for speedy
trial purposes.
For these reasons, the trial court's denial of defendant's request was not an
abuse of discretion. Likewise, the court's failure to find a violation o f
defendant's speedy trial rights was not clearly erroneous.
II.
We next address defendant's challenge to the trial court's denial of the
motion to suppress the evidence seized from the DWI stop and his person. We
begin by recognizing that "[o]ur standard of review is whether there is sufficient
credible evidence present in the record to uphold the findings of the Law
Division." State v. Dispoto, 383 N.J. Super. 205, 217 (App. Div. 2006) (citing
State v. Johnson, 42 N.J. 146, 162 (1964)). "We review the trial court's findings
of fact on a motion to suppress deferentially, affirming whenever they are
supported by sufficient credible evidence in the record." State v. Dunbar, 434
N.J. Super. 522, 526 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)).
"Generally, we afford substantial deference to a trial court's evidentiary
rulings." State v. Sessoms, 413 N.J. Super. 338, 342 (App. Div. 2010) (citing
State v. Covell, 157 N.J. 554, 564 (1999)). The trial court is "entitled to draw
inferences from the evidence and make factual findings based on his 'feel of the
A-4142-16T2
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case,' and those findings [are] entitled to deference unless they [are] 'clearly
mistaken' or 'so wide of the mark' that the interests of justice require[] appellate
intervention." Elders, 192 N.J. at 245; see also State v. Locurto, 157 N.J. 463,
471 (1999) (quoting Johnson, 42 N.J. at 161-62). We "may not substitute [our]
own conclusions regarding the evidence, even in a 'close' case." State v.
Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010) (quoting Locurto, 157 N.J.
at 471). "'[A]bsent a showing of an abuse of discretion, i.e., [that] there has
been a clear error of judgment,' an evidentiary ruling will stand." Sessoms, 413
N.J. Super. at 342 (alterations in original) (quoting State v. Brown, 170 N.J. 138;
147 (2001)).
A.
Defendant claims there was insufficient reasonable suspicion of
intoxication to justify his removal from the vehicle on the night of the stop. He
contends the State failed to meet its burden because it relied on the hearsay
testimony of Schwartz rather than Sysol, the officer who made the initial stop ,
to establish reasonable suspicion.
The Fourth Amendment of the United States Constitution and the New
Jersey Constitution guarantee the right of people to be secure against
unreasonable searches and seizures, by requiring warrants issued upon probable
A-4142-16T2
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cause. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Warrantless searches "are
presumptively unreasonable and invalid unless justified by a recognized
exception to the warrant requirement." State v. Bolte, 115 N.J. 579, 585 (1989).
One such exception is an investigatory stop. See State v. Patino, 83 N.J.
1, 7 (1980) ("The warrant requirement . . . may be dispensed . . . in only a few
narrowly circumscribed exceptions. The prima facie invalidity of any
warrantless search is overcome only if that search falls within one of the specific
exceptions created by the United States Supreme Court."); see also Terry v.
Ohio, 392 U.S. 1, 27 (1968); United States v. Hensley, 469 U.S. 221, 226 (1985)
(finding that police officers may stop a motor vehicle and detain its occupants
temporarily while they investigate a criminal offense). To subject a person to
an investigatory stop and detention, however, the police must have r easonable,
articulable suspicion of conduct that violates the law. State v. Bernokeits, 423
N.J. Super. 365, 371-72 (App. Div. 2011).
A police officer may conduct an investigatory stop if, based on the totality
of the circumstances, there is reasonable suspicion to believe an individual has
just engaged in, or is about to engage in, criminal activity. State v. Maryland,
167 N.J. 471, 487 (2001) (citing Terry, 392 U.S. at 21). Our Supreme Court has
defined "reasonable suspicion" as "a particularized and objective basis for
A-4142-16T2
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suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J.
346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).
Under the totality of the circumstances analysis, weight is given to the officer's
experience and knowledge, and the "rational inferences that could be drawn
from the facts objectively and reasonably viewed in light of the officer's
expertise." State v. Todd, 355 N.J. Super. 132, 137-38 (App. Div. 2002)
(quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). In the context of a detention
to perform a field sobriety test, "our courts have consistently . . . upheld such
routine, standardized testing on the basis of a reasonable, articulable suspicion
of driver intoxication." Bernokeits, 423 N.J. Super. at 374 (citing State v.
Adubato, 420 N.J. Super. 167, 181 (App. Div. 2011)).
Here, at the suppression motion hearing, Schwartz testified regarding the
information he received from Sysol during the traffic stop, namely, defendant's
erratic driving and conduct after the stop. However, Schwartz testified about
his own observations of defendant and justifications for the administration of
the field sobriety test, including the chemical odor on defendant's breath, his
slow and slurred speech, and his difficulty maintaining balance.
The court provided a detailed explanation of the basis for reasonable
suspicion by explaining the totality of the circumstances. It concluded
A-4142-16T2
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the State established that . . . Sysol and . . . Schwartz
did have an articulable reasonable suspicion that
[d]efendant was driving while intoxicated in order to
expand the scope of the initial traffic stop and detain
[d]efendant for field sobriety testing. Specifically, first
[d]efendant was stopped at 12:21 a.m. after making a
left hand turn on red. His speech was slurred, his hand
and head movements were slow, and his pupils were
pinpoint. Even outside the vehicle, the [d]efendant
moved slowly and had difficulty standing and walking
without falling or swaying from side to side. In
addition, the court notes that . . . Schwartz observed a
strong "chemical" odor from the [d]efendant's breath
and person. Given the totality of circumstances
presented, the officer had a reasonable articulable
suspicion that [d]efendant was driving while
intoxicated and therefore, the [d]efendant's motion
should be denied.
The court also explained why there was no hearsay issue:
Defendant's argument that the only information that . . .
Schwartz had was hearsay is inaccurate. As previously
mentioned, it was . . . Schwartz who had detected the
chemical odor coming from the [d]efendant's breath.
This observation, coupled with what . . . Sysol . . . told
him about the [d]efendant's slurred speech, slow
movements, and inability to stand on his own gave . . .
Schwartz enough articulable reasonable suspicion to
request the [d]efendant to do psychophysical testing.
Notwithstanding, on appeal defendant cites State v. Bacome, 440 N.J.
Super. 228, 240 (App. Div. 2015) for the proposition that a "key fact" is not
permitted to be adduced entirely from hearsay and asserts the court here relied
on hearsay testimony and there was insufficient evidence to find a reasonable
A-4142-16T2
21
articulable suspicion of defendant's intoxication to support his detention outside
the vehicle. We disagree.
The issue in Bacome was whether police had a "heightened awareness of
danger" during a motor vehicle stop that necessitated ordering a passenger out
of a car for a seatbelt violation. 440 N.J. Super. at 237-38 (quoting State v.
Smith, 134 N.J. 599, 618 (1994)). There, the State relied on the testimony of an
officer that his partner observed the defendant moving forward and reaching
under his seat during the stop. Id. at 232, 239. On appeal, we reversed the order
denying the motion to suppress because the trial court made "no finding
regarding whether there was 'some fact or facts in the totality of the
circumstances that would create in a police officer a heightened awareness of
danger that would warrant an objectively reasonable officer securing the scene
in a more effective manner.'" Id. at 240 (quoting Smith, 134 N.J. at 618). We
noted the trial court failed to explain how the driver's movements suggested the
passenger posed a danger. Id. at 241.
Our Supreme Court reversed, holding "the furtive movements inside the
car were 'specific and articulable facts' that warranted heightened caution to
order the passengers out of the vehicle." State v. Bacome, 228 N.J. 94, 108
(2017). The Court cited the hearsay testimony of the officer, stating "[a] key
A-4142-16T2
22
element in our analysis is [the officer]'s testimony that, after the detectives
pulled the [vehicle] over, [his partner] observed [the] defendant reaching
forward under his seat. We defer to the motion judge's finding that [the officer]'s
testimony was credible." Id. at 107.
Likewise, here, the trial court acknowledged hearsay evidence is
admissible during a suppression hearing, but also made specific findings about
Schwartz's testimony, which it found credible. Defendant does not dispute the
credibility of Schwartz's testimony. The court found defendant's slow
movement, slurred speech, lack of coordination, and unusually constricted
pupils provided the reasonable suspicion of intoxication and a basis to detain
defendant outside the vehicle. These findings are supported by the substantial
credible evidence in the record and we decline to disturb them.
B.
Defendant challenges the seizure of the vial from his vehicle under the
plain view exception for a warrantless search. He argues Schwartz lacked
probable cause to seize the vial because "his expertise was limited with regard
to PCP and other non-common drugs[,]" and he testified the vial resembled an
eye dropper. Defendant argues, even if there was probable cause to associate
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the contents of the vial with contraband, there was no exigency and Schwartz
had sufficient time to obtain a search warrant.
"'[P]lain view' provides grounds for seizure of an item when an office r's
access to an object has some prior justification under the Fourth Amendment."
Texas v. Brown, 460 U.S. 730, 738 (1983). "The seizure of property in plain
view involves no invasion of privacy and is presumptively reasonable, assuming
that there is probable cause to associate the property with criminal activity."
Payton v. New York, 445 U.S. 573, 587 (1980). Our Supreme Court has stated:
"We do not believe that a police officer lawfully in the viewing area must close
his eyes to suspicious evidence in plain view." State v. Bruzzese, 94 N.J. 210,
237 (1983). Therefore, for the plain view exception to apply:
First, the police officer must be lawfully in the viewing
area.
Second, the officer has to discover the evidence
"inadvertently," meaning that he did not know in
advance where evidence was located nor intend
beforehand to seize it.[2]
Third, it has to be "immediately apparent" to the police
that the items in plain view were evidence of a crime,
contraband, or otherwise subject to seizure.
2
Our Supreme Court has since excised the inadvertence requirement from the
plain view doctrine. State v. Gonzales, 227 N.J. 77, 82 (2016). However, the
reformulated doctrine is to be applied prospectively and is inapplicable to this
case. Ibid.A-4142-16T2
24
[Id. at 236 (citations omitted) (citing Coolidge v. New
Hampshire, 403 U.S. 443, 465-68, 470 (1971)).]
The "immediately apparent" prong requires an officer have probable cause
to associate the item with criminal activity or contraband. Id. at 237. "In
determining whether the officer has probable cause to associate the item with
criminal activity, the court looks to what the police officer reasonably knew at
the time of the seizure." Ibid.
[P]robable cause is a flexible, common-sense standard.
It merely requires that the facts available to the officer
would "warrant a man of reasonable caution in the
belief," Carroll v. United States, 267 U.S. 132, 162
(1925), that certain items may be contraband or stolen
property or useful as evidence of a crime; it does not
demand any showing that such a belief be correct or
more likely true than false. A "practical, nontechnical"
probability that incriminating evidence is involved is
all that is required. Brinegar v. United States, 338 U.S.
160, 176 (1949).
[Brown, 460 U.S. at 742.]
Here, the trial court made the following findings regarding the plain view
search:
The [o]fficer was outside of the vehicle when he viewed
the contraband. There is no evidence to show that the
officer did not come upon this evidence inadvertently.
Finally, the [o]fficer stated on direct examination that
although he was not sure of exactly the type of
contraband, based on his knowledge he did believe it to
be contraband. This information is enough to satisfy
A-4142-16T2
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the standard for the officer to seize the evidence under
the plain view exception.
We agree. Schwartz reasonably believed the vial was contraband based
on his experience as a DRE. His testimony was credible because it explained
the common usage and physical manifestations of PCP. Additionally, he saw
the vial after defendant exhibited signs of intoxication and failed field sobriety
tests.
We also reject defendant's contention Gonzales requires the plain view
exception to be accompanied by justifiable exigency. In Gonzales the Court
concluded,
[p]lain view, in most instances, will not be the sole
justification for a seizure of evidence because police
must always have a lawful reason to be in the area
where the evidence is found. Thus, when necessary, the
police will also be required to comply with the warrant
requirement or one of the well-delineated exceptions to
that requirement.
[227 N.J. at 104 (emphasis added).]
Here, for reasons we have noted, Schwartz had a lawful reason to be
standing beside defendant's vehicle. Moreover, the facts here demonstrate the
discovery of the vial was incident to a valid stop, inadvertent, and not pretextual
as found in Gonzales. Id. at 87.
A-4142-16T2
26
C.
Defendant argues the urine test was an unconstitutional search and
seizure. Specifically, he argues the search incident to arrest and exigency
exceptions to the warrant requirement are inapplicable when a urine sample is
taken.
As we noted, defendant was Mirandized on two separate occasions, once
when he was arrested at the scene of the traffic stop, and again at the station
house. After defendant voluntarily signed a Miranda waiver, Schwartz
requested a urine sample to complete the DRE procedure, to which defendant
complied. Therefore, the search was constitutional and we decline to consider
the balance of defendant's arguments regarding the urine sample.
III.
Finally, although neither party raised the issue, at oral argument the State
agreed the sentence imposed for defendant's conviction for third-degree
possession of PCP was illegal, in that it imposed a jail term of 180 days, but
then suspended all but 30 days of the term. See State v. Scioscia, 200 N.J. Super.
28, 32, n. 2 (App. Div. 1985); State v. Cullen, 351 N.J. Super. 505, 507-08 (App.
Div. 2002). For these reasons, we reverse and remand the sentence for the PCP
possession for re-sentencing.
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Affirmed as to the conviction and reverse and remanded as to the sentence.
We do not retain jurisdiction.
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