STATE OF NEW JERSEY VS. TYQUAN FUQUA STATE OF NEW JERSEY VS. DEREK FUQUA STATE OF NEW JERSEY VS. CHANELL VIRGIL STATE OF NEW JERSEY VS. TREVIS THOMAS (14-04-0026, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3149-17
A-3979-17
A-4584-17
A-0137-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYQUAN FUQUA,
a/k/a TYOUAN FUQUA,
Defendant-Appellant.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEREK FUQUA, a/k/a
DISHAWN FUQUA,
DEREK D. FUQUA,
JAMES FUQUA,
DERRICK FUQUA,
JOHNNIE BROWN,
JAHARIE CROWN,
and DEREK FOQUA,
Defendant-Appellant.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHANELL VIRGIL,
Defendant-Appellant.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TREVIS THOMAS,
Defendant-Appellant.
__________________________
Submitted May 24, 2021 – Decided August 20, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
14-04-0026.
Joseph E. Krakora, Public Defender, attorney for
appellant Tyquan Fuqua in A-3149-17 (Frank M.
Gennaro, Designated Counsel, on the brief).
A-3149-17
2
Joseph E. Krakora, Public Defender, attorney for
appellant Derek Fuqua in A-3979-17 (Richard
Sparaco, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Chanell Virgil in A-4584-17 (David A. Gies,
Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant Trevis Thomas in A-0137-18 (Alyssa Aiello,
Assistant Deputy Public Defender, of counsel and on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent in A-3149-17 and A-3979-17 (Adam D.
Klein, Deputy Attorney General, of counsel and on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent in A-4584-17 (Steven Cuttonaro, Deputy
Attorney General, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent in A-0137-18 (William P. Cooper-Daub,
Deputy Attorney General, of counsel and on the brief).
Appellant Derek Fuqua filed pro se supplemental
briefs.
PER CURIAM
Defendants Derek Fuqua, Tyquan Fuqua, Trevis Thomas, and Chanell
Virgil appeal from their guilty plea convictions arising from their participation
in a drug trafficking operation led by Derek Fuqua. The State Police
investigation began in 2012 and employed extensive electronic surveillance
A-3149-17
3
authorized pursuant to the New Jersey Wiretapping and Electronic
Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-1 to -37. The
wiretap portion of the investigation ran over the course of sixty-five days in
February through April 2013, during which time nearly 20,000 telephone calls
and text messages were intercepted. In all, twenty-two co-defendants were
charged in the resulting State Grand Jury indictment.
Defendants contend the State violated the Wiretap Act by intercepting a
call that was made to an attorney's office and by failing to adequately
"minimize" a number of non-relevant calls, primarily personal conversations
during which criminal activity was not discussed. Because defendants Derek
Fuqua, Tyquan Fuqua, Thomas, 1 and Virgil all raise the same contentions
relating to the minimization requirements of the Wiretap Act, we calendared
their appeals back-to-back and now consolidate them for the purpose of issuing
a single opinion.
We affirm the trial court's ruling that the State did not violate the
Wiretap Act by intercepting Derek Fuqua's call to an attorney's office. The
1
We note that Thomas did not join in the motion to suppress the wiretap
evidence and did not participate in the suppression hearing. For reasons we
explain later in this opinion, see infra note 5, we nonetheless address on the
merits his contention on appeal that his rights under the Wiretap Act were
violated by the manner in which intercepted calls were minimized.
A-3149-17
4
record amply supports the trial court's finding that Fuqua's intercepted
conversation was with a secretary or receptionist—rather than an attorney—
and that the call related solely to scheduling matters with no discussion of
legal advice or disclosure of any confidential information. Accordingly, that
interception violated neither the attorney-client privilege nor the Wiretap Act
provision designed to safeguard privileged communications.
Defendants also argued to the trial court that non-relevant telephone
calls were improperly monitored, requiring the suppression of all information
and evidence derived from the entire electronic surveillance investigation. The
trial court convened a hearing spanning seven nonconsecutive days, during
which it listened to the disputed telephone calls, took testimony from State
Police witnesses, and heard arguments of counsel. The trial court rendered a
twenty-two-page written decision in which it ruled that although "better efforts
could have been utilized in the monitoring" of a "hand full of calls," the State
Police monitors did not violate the Wiretap Act.
After carefully reviewing the record in light of the arguments of the
parties and applicable principles of law, we affirm the trial court’s ruling with
respect to the specific calls analyzed in the court’s well-reasoned written
decision. However, for reasons that are not made clear in the record, the court
A-3149-17
5
did not analyze and rule on five calls challenged by defendants that were
played and discussed at the suppression hearing. We therefore are constrained
to remand the matter for the trial court to make findings of fact and
conclusions of law with respect to those five disputed phone calls that are not
specifically addressed in its May 17, 2016 written decision.
Furthermore, with respect to call #1,117 made on March 18, 2013, the
court's ruling that the monitoring of the call was not unreasonable appears to
have been contingent upon the State providing additional information that the
parties to that call had previously discussed criminal activity. The record
before us does not indicate whether the State complied with the trial court's
instruction to supply that additional information. We therefore remand for the
trial court to make definitive findings with respect to this particular call.
In addition to the minimization contentions, defendants argue the State
failed to comply with the statutory requirement to immediately seal the wiretap
recordings. The wiretap authorization expired on April 3, 2013. On that date,
the State asked the Assignment Judge to seal the recordings. The judge
directed the State to return several days later. The State complied with that
instruction and the judge sealed the recordings on April 9, 2013. We affirm
A-3149-17
6
the trial court's ruling that the State provided a satisfactory explanation for the
six-day delay and thus did not violate the Wiretap Act.
In addition to the wiretap-related contentions, defendant Thomas appeals
from the denial of his motion to suppress illicit drugs found in a warrant search
of a vehicle in which he was a passenger. Thomas first argued to the trial
court that the vehicle was unlawfully stopped. After the trial court took
testimony at the suppression hearing, the defense submitted a supplemental
brief arguing that the probable cause set forth in the search warrant application
was tainted because the drug detection canine unlawfully entered the vehicle.
The trial court addressed the canine sniff contention and found the dog
entered the vehicle unlawfully. The court nonetheless ruled there was
adequate probable cause to support the ensuing search warrant application
based on information obtained from independent sources. Because the dog
sniff issue was not raised until after the police witnesses had testified at the
suppression hearing, we conclude the State was deprived an opportunity to
present testimony concerning the circumstances in which the dog examined the
vehicle. Importantly, the State had no reason to clarify on the record whether
the dog alerted to the presence of controlled dangerous substances (CDS) after
first examining the exterior of the vehicle. Accordingly, we deem it necessary
A-3149-17
7
to remand the matter for a new hearing to establish the exact circumstances
and timing of the dog scent examination.
With respect to the trial court's conclusion that the search warrant can be
sustained based on information from sources independent of the canine sniff,
the State acknowledges the court did not consider and make findings with
respect to two of the three elements that must be established by clear and
convincing evidence to invoke the independent source exception to the
exclusionary rule under State v. Holland, 176 N.J. 344 (2002). We therefore
remand the matter for the court to make findings of fact and conclusions of law
with respect to all three prongs of the independent source doctrine.
Defendant Virgil appeals from the denial of her motion to withdraw her
guilty plea on the grounds she received a sentence of community service that
was not explicitly contemplated in her plea agreement. We affirm the denial
of her motion to withdraw her guilty plea for the reasons explained in the trial
court's oral opinion. Virgil also appeals from the denial of her motion for a
mistrial based on prosecutorial misconduct during the trial, which was
interrupted when defendant and her trial co-defendants pled guilty. Virgil did
not preserve the right to challenge the denial of her mistrial motion and we
therefore decline to consider that contention on appeal.
A-3149-17
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I.
We briefly summarize the relevant circumstances surrounding each
appeal:
Derek Fuqua
Derek Fuqua was the alleged leader of the drug trafficking operation.
He was charged in the State Grand Jury indictment with: first-degree
racketeering, N.J.S.A. 2C:41-2(c) and (d); second-degree conspiracy to
distribute or possess with intent to distribute CDS, N.J.S.A. 2C:5-2; first-
degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3; first-degree
distribution of CDS, N.J.S.A. 2C:35-5(a)(1), (b)(1), and (c); first-degree
possession with intent to distribute CDS (heroin), N.J.S.A. 2C:35-5(a)(1),
(b)(1), (c), and N.J.S.A. 2C:2-6; first-degree possession with intent to
distribute CDS (cocaine), N.J.S.A. 2C:35-5(a)(1), (b)(1), and N.J.S.A. 2C:2-6;
first-degree maintaining or operating a CDS production facility, N.J.S.A.
2C:35-4 and N.J.S.A. 2C:2-6; second-degree distribution of CDS, N.J.S.A.
2C:35-5(a)(1) and (b)(2); second-degree unlawful possession of a weapon,
N.J.S.A. 2C:58-5 and N.J.S.A. 2C:39-5(b); second-degree possession of
weapons during commission of certain crimes, N.J.S.A. 2C:35-5, N.J.S.A.
2C:39-4.1(a), and N.J.S.A. 2C:2-6; third-degree distribution of CDS on or
A-3149-17
9
within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree
maintaining a fortified premises, N.J.S.A. 2C:35-4.1 and N.J.S.A. 2C:2-6;
second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b); and
second-degree financial facilitation of criminal activity (money laundering),
N.J.S.A. 2C:21-25(a), (b), and N.J.S.A. 2C:2-6.
On June 10, 2016, Derek Fuqua pled guilty to the first-degree leader of a
narcotics trafficking network charge pursuant to a negotiated agreement. In
exchange for the guilty plea, the State agreed to dismiss the remaining charges
and to recommend a twenty-four-year state prison term with a twelve-year
period of parole ineligibility. Defendant was sentenced in accordance with the
plea agreement in February 2018.
Through counsel, he raises the following contentions for our
consideration:
POINT I
THE STATE FAILED TO FOLLOW PROCEDURES
STRICTLY REQUIRED BY THE WIRETAP ACT,
THEREFORE THESE RECORDINGS MUST BE
SUPPRESSED.
A. THE STATE FAILED TO MINIMIZE THE
INTERCEPTED RECORDINGS
PURSUANT TO THE WIRETAP ACT.
A-3149-17
10
B. SUPPRESSION IS REQUIRED DUE TO
THE FAILURE TO SEAL THE
RECORDINGS IN A TIMELY MANNER IN
VIOLATION OF THE WIRETAP ACT.
Derek Fuqua also submitted a supplemental pro se merits brief, in which
he contends:
POINT I
IN MAKING REPEATED FINDINGS THAT
WIRETAP MONITORS SHOULD HAVE
ELIMINATED OR FURTHER MINIMIZED CALLS
THAT WERE NOT RELEVANT TO THE OFFENSES
SPECIFIED IN THE WIRETAP ORDER, THE TRIAL
COURT COMMITTED LEGAL ERROR BY
FAILING TO ORDER THE SUPPRESSION OF ALL
COMMUNICATIONS SEIZED IN CONNECTION
TO THE WIRETAP UNDER N.J.S.A. 2A:156A-21.
[POINT II]
THE TRIAL COURT COMMITTED LEGAL ERROR
IN RULING THAT: (1) THE ATTORNEY-CLIENT
PRIVILEGE DOES NOT EXTEND TO AN
ATTORNEY'S SECRETARY ACTING AS AN
INTERMEDIARY BETWEEN DEFENDANT AND
HIS ATTORNEY; (2) UNLESS UNLAWFULLY
INTERCEPTED COMMUNICATIONS BETWEEN A
CLIENT AND HIS ATTORNEY DISCLOSES
MATTERS INVOLVING TRIAL STRATEGY IT
DOES NOT VIOLATE THE WIRETAP ACT OR THE
ATTORNEY-CLIENT PRIVILEGE; AND (3)
SUPPRESSION OF THE WIRETAP WAS NOT
REQUIRED UNDER N.J.S.A. 2A:156A-21 WHERE A
COURT FINDS THAT THE WIRETAP ACT
PROVISION(S) HAVE BEEN VIOLATED.
A-3149-17
11
Tyquan Fuqua
In April 2013, State Police executed a search warrant of Tyquan Fuqua's
residence. The probable cause for the search warrant was based on
information learned from wiretap interceptions. He was charged in the State
Grand Jury indictment with first-degree racketeering, N.J.S.A. 2C:41-2(c) and
(d); second-degree conspiracy to distribute or possess with intent to distribute
CDS, N.J.S.A. 2C:35-5(a)(1), (b)(1), (c), and N.J.S.A. 2C:5-2; third-degree
possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(3);
third-degree possession with intent to distribute on or near school property,
N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7; third-degree maintaining a fortified
premises, N.J.S.A. 2C:35-4.1; and second-degree money laundering, N.J.S.A.
2C:21-25(a), (b), and N.J.S.A. 2C:2-6.
Tyquan Fuqua and co-defendant Rashaun Bryant 2 moved to dismiss
several counts of the indictment and for a hearing pursuant to Franks v.
Delaware. 3 The trial court denied both motions, concluding in a written
opinion that the State had presented to the grand jury a prima facie case of
racketeering, conspiracy, possession of CDS with intent to distribute,
2
Co-defendant Rashaun Bryant is not a party to this appeal.
3
438 U.S. 154 (1978). The Franks issue is not before us in this appeal.
A-3149-17
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possession of CDS on or near school property, maintaining a fortified premise,
and money laundering.
On June 10, 2016, pursuant to a negotiated agreement, Tyquan Fuqua
pled guilty to the count charging third-degree possession of CDS with intent to
distribute. The State agreed to dismiss the remaining charges. On January 12,
2018, the court sentenced defendant to a three-year prison term in accordance
with the plea agreement.
Tyquan Fuqua raises the following contention for our consideration:
POINT I
THE TRIAL COURT IMPROPERLY DENIED
DEFENDANT'S MOTION TO SUPPRESS THE
WIRETAP EVIDENCE.
Trevis Thomas
On March 18, 2013, Jersey City police officers, acting at the behest of
the State Police, initiated a stop of a vehicle in which Thomas was a passenger.
A drug detection canine was brought to the scene and alerted to the presence of
CDS in the vehicle. Police then obtained a warrant to search the vehicle,
which revealed CDS in a hidden compartment.
Thomas was charged in the State Grand Jury indictment with first-degree
racketeering, N.J.S.A. 2C:41-2(c); second-degree conspiracy to distribute a
A-3149-17
13
controlled dangerous substance, heroin, N.J.S.A. 2C:5-2; first-degree
possession with the intent to distribute a controlled dangerous substance,
heroin, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), N.J.S.A. 2C:35-5(c),
and N.J.S.A. 2C:2-6; and second-degree money laundering, N.J.S.A. 2C:21-
25(a), N.J.S.A. 2C:21-25(b), and N.J.S.A. 2C:2-6.
Defendant filed a motion to suppress the CDS found in the vehicle. The
trial court convened a two-day suppression hearing on May 18 and June 3,
2015, after which the court rendered a written opinion denying the suppression
motion.
Defendant’s jury trial commenced on May 17, 2017. He was tried along
with co-defendant Virgil and another co-defendant, Shakera Styles. 4 On May
23, 2017, in mid-trial, Thomas pled guilty to the count of the indictment
charging him with racketeering. During the plea hearing, defendant expressly
preserved the right to appeal the denial of his motion to suppress the fruits of
the vehicle search and the denial of his co-defendants' motion to suppress the
4
Co-defendant Styles is not a party to this appeal.
A-3149-17
14
evidence derived from the wiretap interceptions based on the alleged
minimization violations. 5
Thomas raises the following contentions for our consideration:
POINT I
THE MOTION JUDGE ERRED IN DENYING
SUPPRESSION OF THE EVIDENCE SEIZED
FROM THE VAN BECAUSE EACH PRONG OF
THE INDEPENDENT-SOURCE TEST WAS NOT
ESTABLISHED.
A. THE MOTION JUDGE FAILED TO
SCRUPULOUSLY APPLY EACH PRONG OF
THE INDEPENDENT-SOURCE EXCEPTION,
AS REQUIRED UNDER STATE V.
HOLLAND, 176 N.J. 344 (2009).
B. BECAUSE THE STATE FAILED TO
ESTABLISH ALL THREE PRONGS OF THE
INDEPENDENT-SOURCE EXCEPTION,
SUPPRESSION IS REQUIRED. IN THE
ALTERNATIVE, THE MATTER MUST BE
5
As we have noted, Thomas did not join in his co-defendants’ motion to
suppress the wiretap evidence based on the alleged minimization violations,
and thus did not participate in that suppression hearing. As a general matter, a
defendant who has not raised an issue in the Law Division will not be
permitted to raise that issue on appeal unless he or she demonstrates plain error
that was "clearly capable of producing an unjust result." R. 2:10-2; see also
State v. Macon, 57 N.J. 325, 336 (1971). In this instance, however, because
the trial court accepted Thomas's guilty plea that expressly preserved the right
to appeal the denial of co-defendants’ motion to suppress the wiretap evidence,
we consider Thomas’s contention on appeal as if he had participated in the
motion to suppress the wiretap evidence.
A-3149-17
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REMANDED FOR THE MOTION JUDGE TO
CONDUCT A PROPER INDEPENDENT-
SOURCE ANALYSIS.
POINT II
THE MOTION JUDGE ERRED IN DENYING
SUPPRESSION OF WIRETAP EVIDENCE
TAINTED BY THE STATE'S FAILURE TO
MINIMIZE AN INTERCEPTED TELEPHONE CALL
MADE BY A CO[-]DEFENDANT TO HIS
LAWYER'S OFFICE.
Chanell Virgil
Defendant Virgil was charged in the State Grand Jury indictment with
first-degree racketeering, N.J.S.A. 2C:41-2(c) and N.J.S.A. 2C:41-2(d);
second-degree conspiracy to distribute a controlled dangerous substance,
heroin, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:35-10(a)(1); and second-degree
money laundering, N.J.S.A. 2C:21-25(a) and N.J.S.A. 2C:21-25(b).
On May 17, 2017, Virgil proceeded to trial along with co-defendants
Thomas and Styles. During the State's opening, Virgil's counsel objected to
remarks made by the prosecutor in his opening statement and moved for a
mistrial. The trial court found the deputy attorney general's comment was
inappropriate but denied the motion for a mistrial. Instead, the court gave a
limiting instruction to the jury.
A-3149-17
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As we have already noted, on May 23, 2017, the trial was interrupted
when Virgil entered a guilty plea to the count of the indictment charging third-
degree conspiracy to possess CDS. On August 11, 2017, the court sentenced
Virgil to a three-year term of probation in accordance with the plea agreement.
She was ordered to perform fifty hours of community service as one of the
conditions of probation. The prospect of performing community service was
not specifically mentioned in the terms of the plea agreement or during the
plea colloquy.
Subsequently, defendant filed a motion to withdraw her guilty plea,
contending the sentence imposed did not match her reasonable expectations
from her negotiated agreement. On January 12, 2018, the sentencing judge
held a hearing and rendered an oral decision denying Virgil's motion to
withdraw her guilty plea.
Virgil raises the following contentions for our consideration:
POINT I
THE TRIAL JUDGE'S DENIAL OF DEFENDANT'S
MOTION TO WITHDRAW HER GUILTY PLEA
WAS ERRONEOUS WHERE THE SENTENCE
IMPOSED DID NOT MEET HER REASONABLE
EXPECTATION OF THE NEGOTIATED PLEA
AGREEMENT.
A-3149-17
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POINT II
THE MOTION JUDGE'S FAILURE TO CONSIDER
THE SUBJECTIVE GOOD FAITH OF THE
WIRETAP MONITORS WAS REVERSIBLE
ERROR.
POINT III
THE TRIAL JUDGE ERRED WHERE [HE] DID
NOT DECLARE A MISTRIAL AFTER THE
DEPUTY ATTORNEY GENERAL'S OPENING
STATEMENT WHICH, BY HIS INFLAMMATORY
AND ARGUMENTATIVE REMARKS,
SUBSTANTIALLY PREJUDICED DEFENDANT'S
FUNDAMENTAL RIGHT TO HAVE A JURY
FAIRLY ASSESS THE PERSUASIVENESS OF HER
CASE.
II.
We first consider defendants' contentions that their rights under the
Wiretap Act were violated. 6 Defendants raise three distinct arguments that we
address in turn: (1) the State improperly intercepted a telephone call to an
attorney's office, constituting a per se violation of the Wiretap Act; (2) the
wiretap monitors failed to properly minimize specified personal telephone
conversations that were not relevant to criminal activity; and (3) the State
6
The motion was brought by co-defendants Derek Fuqua, Cynthia Fuqua,
Tyquan Fuqua, Marion Darby, Rashaun Bryant, Jennifer Morfa, Andre Childs,
Shakera Styles, and Chanell Virgil. Co-defendants Cynthia Fuqua, Darby,
Bryant, Morfa, Childs, and Styles are not parties to this appeal.
A-3149-17
18
failed to immediately seal the recorded interceptions at the expiration of the
wiretap order.
A.
We first address defendants' contention that the State improperly
intercepted a call, Call #18,179, that Derek Fuqua placed to a law firm.
Defendants contend this interception violated the attorney-client privilege and
constitutes a violation of N.J.S.A. 2A:156A-11,7 which generally prohibits the
interception of attorney-client conversations.
7
N.J.S.A. 2A:156A-11, which affords special protection to privileged
communications, provides in pertinent part:
If the facilities from which, or the place where, the
wire, electronic or oral communications are to be
intercepted are being used, or are about to be used, or
are leased to, listed in the name of, or commonly used
by . . . an attorney-at-law . . . no order [for
interception] shall be issued unless the court, in
addition to the matters provided in section 10 of [L.
1968, c. 409 ( N.J.S.A. 2A:156A-10)], determines that
there is a special need to intercept wire, electronic or
oral communications over such facilities or in such
places. Special need as used in this section shall
require in addition to the matters required by section
10 of [L. 1968, c. 409 (N.J.S.A. 2A:156A-10)], a
showing that the . . . attorney-at-law. . . is personally
engaging in or was engaged in over a period of time as
a part of a continuing criminal activity or is
committing, has or had committed or is about to
commit an offense[.]
A-3149-17
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We reproduce verbatim the disputed call:
FEMALE: Law firm.
DEREK FUQUA: Yeah, my name is Derek Fuqua.
I'm calling because I'm on the Woodbridge court
schedule.
I'm trying to find out what court it is there.
FEMALE: Okay, hold on.
DEREK FUQUA: All right.
[Defendant is placed on hold]
FEMALE: Hey, hi. So, good morning. You said you
were in Woodbridge court?
DEREK FUQUA: Yes.
FEMALE: And did you speak with anyone regarding
the court date?
DEREK FUQUA: Um, I'm—I just came to the court
date (indiscernible).
FEMALE: Okay. All right. Your name was on the
calendar?
DEREK FUQUA: (Indiscernible) I'm just walking in.
I was caught in traffic. That's all I'm trying to see
(indiscernible).
FEMALE: Okay, how do I spell your last name?
[Defendant spells his name]
FEMALE: Ah, okay. All right.
A-3149-17
20
DEREK FUQUA: Yes.
FEMALE: We have a 6:45 for you on the calendar,
actually at night.
DEREK FUQUA: Oh, it is?
FEMALE: Uh-huh.
DEREK FUQUA: All right.
FEMALE: Night court.
DEREK FUQUA: All right, no problem. Thanks.
FEMALE: Okay. Thanks, bye.
The State Police monitor listening to the call live believed that Derek
Fuqua was speaking to a court representative. 8 We agree with the trial court
that this interception did not violate either the attorney-client privilege or the
Wiretap Act. "[T]he attorney-client privilege generally applies to
communications (1) in which legal advice is sought, (2) from an attorney
acting in his capacity as a legal advisor, (3) and the communication is made in
confidence, (4) by the client." Hedden v. Kean Univ., 434 N.J. Super. 1, 10
(App. Div. 2013). This privilege does not protect all communications with a
8
The record before us does not identify the law firm and does not indicate
whether Derek Fuqua was represented by that firm or whether Fuqua contacted
the firm because the municipal court judge was associated with it.
A-3149-17
21
law firm. Rather, it only protects communications made between a "lawyer
and his client in the course of that relationship and in professional confidence."
Tractenberg v. Twp. of W. Orange, 416 N.J. Super. 354, 375 (App. Div. 2010)
(quoting N.J.R.E. 504(1)). Although in certain circumstances the privilege
may extend to interactions between the client and a lawyer's agent—such as an
investigator or a secretary—the "sine qua non of the privilege is that the client
has consulted the lawyer in the latter's capacity as an attorney." L.J. v. J.B.,
150 N.J. Super. 373, 377 (App. Div. 1977); see also Fellerman v. Bradley, 99
N.J. 493, 499 (1985) ("For a communication to be privileged it must initially
be expressed by an individual in his capacity as a client in conjunction with
seeking or receiving legal advice from the attorney in his capacity as such,
with the expectation that its content remain confidential.").
The transcript of the intercepted call confirms that although Derek Fuqua
contacted a law firm and spoke with a secretary or receptionist employed by
the firm, he did not do so while in the course of seeking or discussing legal
advice. Rather, defendant merely sought information regarding the scheduling
of a court date and was provided with that information. Further, no
confidential information was discussed. Accordingly, we affirm the trial
court's ruling that listening to this call did not violate the attorney -client
A-3149-17
22
privilege or the Wiretap Act provision designed to protect privileged
communications.
B.
We turn next to defendants' contention that the wiretap monitors
improperly minimized non-relevant phone calls. We begin by acknowledging
the legal principles that guide our review of alleged Wiretap Act violations.
As a general matter, the scope of our review of the denial of any suppression
motion is limited. State v. Handy, 206 N.J. 39, 44–45 (2011). We "must
uphold the factual findings underlying the trial court's decision, so long as
those findings are 'supported by sufficient credible evidence in the record.'"
State v. Evans, 235 N.J. 125, 133 (2018) (quoting State v. Elders, 192 N.J.
224, 243 (2007)). "An appellate court 'should give deference to those findings
of the trial judge which are substantially influenced by his [or her] opportunity
to hear and see the witnesses and to have the "feel" of the case, which a
reviewing court cannot enjoy.'" Elders, 192 N.J. at 244. A trial judge's
credibility determinations therefore should be upheld if they are supported by
sufficient, credible evidence. State v. S.S., 229 N.J. 360, 374 (2017).
In contrast, we review the trial court's legal conclusions de novo. Id. at
380. Because issues of law "do not implicate the fact-finding expertise of the
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23
trial courts, appellate courts construe the Constitution, statutes, and common
law de novo—with fresh eyes—owing no deference to the interpretive
conclusions of trial courts, unless persuaded by their reasoning." Ibid.(quoting State v. Morrison, 227 N.J. 295, 308 (2016)) (internal quotation
marks omitted). Accordingly, we are not bound by a trial court's
interpretations of the legal consequences that flow from established facts. See
Manalapan Realty LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In the event of a mixed question of law and fact, we review a trial court's
determinations of law de novo but will not disturb a court's factual findings
unless they are "clearly erroneous." State v. Marshall, 148 N.J. 89, 185
(1997).
Turning to substantive legal principles, our Supreme Court has made
clear that the Wiretap Act "must be strictly construed to safeguard an
individual's right to privacy." State v. Ates, 217 N.J. 253, 268 (2014) (citing
State v. Worthy, 141 N.J. 368, 379–80 (1995)). Wiretap orders must "require
that such interception begin and terminate as soon as practicable and be
conducted in such a manner as to minimize or eliminate the interception of
such [non-relevant communications] by making reasonable efforts, whenever
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24
possible, to reduce the hours of interception authorized by said order."
N.J.S.A. 2A:156A-12(f).
This process is commonly referred to as "minimization." In State v.
Catania, our Supreme Court explained:
In addition to being required by statute, minimization
is thus necessary to safeguard an important
constitutional value: the privacy right of those who
use the telephone to be secure from indiscriminate
wiretapping that intercepts all conversations, no
matter how non-relevant or personal, in violation of
the Fourth Amendment proscription against
unreasonable searches and seizures.
[85 N.J. 418, 429 (1981).]
The Court stressed that when executing a wiretap order, "police must
make reasonable efforts to minimize intrinsically as well as extrinsically." Id.
at 434. "'Extrinsic' minimization is accomplished by simply limiting the hours
and total duration of interception, while 'intrinsic' minimization is
accomplished by terminating the interception of individual phone calls within
those hours as it becomes apparent to the monitors that the call is not relevant
to the investigation." Id. at 429. The Catania Court further explained:
[o]ne [method of intrinsic minimization] is "spot
monitoring," a technique whereby the monitoring
agent stops listening to a conversation if, after a short
while, it appears to be irrelevant. However, rather
than terminating the interception indefinitely, the
A-3149-17
25
agent continues to tune in periodically to see if the
conversation has turned to criminal matters. If it has,
then he [or she] resumes full interception. Spot
monitoring would protect the privacy of innocent
callers without providing a loophole through which
criminals could avoid detection by prefacing their
conversations with innocent small talk. . . . Moreover,
spot monitoring is highly persuasive evidence of a
good-faith intention on the part of the monitors to
minimize.
[Id. at 446.]
Extrinsic minimization is essentially determined by the judge issuing the
wiretap authorization, who sets the hours during which calls made to or from
designated telephone facilities may be intercepted. In this appeal, we focus on
the State Police monitors' intrinsic minimization efforts. To survive judicial
scrutiny, those intrinsic minimization efforts must be both "objectively
reasonable" and made in "subjective good faith." Id. at 438.
Although the requirements of the Wiretap Act must be strictly enforced,
the Court in Catania acknowledged that judicial review of intrinsic
minimization does not impose an impracticable standard that might "force
monitors to terminate prematurely their interception of phone calls which
begin on an innocent note but later turn to discussions of criminal activity."
Id. at 445. Importantly, the Court recognized that "monitors are not prophets,
and thus they are not expected to anticipate and screen out all non -relevant
A-3149-17
26
phone calls. All they are expected to do is make reasonable efforts to identify
innocent, non-relevant phone calls and minimize their interception." Ibid.The Court in Catania adopted the three-pronged test devised in Scott v.
United States, 436 U.S. 128 (1978), to determine whether wiretap monitors
made reasonable efforts to minimize interceptions of non-relevant calls. Id. at
432–34 (1981). Under this analytical framework, reviewing courts must
consider: (1) "the nature of the individual phone calls"; (2) "the purpose of the
wiretap"; and (3) "the reasonable expectation of the [law enforcement
monitors] as to what they would overhear based on the information available
to them at the time of the wiretap . . . ." Id. at 433–34.
The first factor takes into account that the nature of a particular call may
make it difficult to minimize. Id. at 433. Reviewing courts must consider, for
example, whether the language used in the conversation is "ambiguous,"
"guarded," or "cryptic." Ibid. Additionally, some calls may be of short
duration, providing the monitor with little opportunity to determine the call's
relevance to criminal activity. Ibid.; see also State v. Pemberthy, 224 N.J.
Super. 280, 300 (App. Div. 1988) ("The fact that entire conversations of brief
duration were recorded . . . [does] not affect the overall intent to minimize.").
A-3149-17
27
The second factor in the Scott/Catania analytical framework—the
purpose of the wiretap—recognizes that broader electronic surveillance efforts
are justified when necessary to "determine the full scope of [an] enterprise"
when police are investigating a conspiracy. Catania, 85 N.J. at 433. A CDS
distribution conspiracy may entail communications with drug suppliers, co -
conspirators, and established or potential new customers. The inherent nature
of a narcotics conspiracy, in other words, suggests the criminal enterprise may
involve a large number of participants arrayed along the drug distribution
hierarchy, ranging from end-use purchasers, street-level retailers, mid-level
wholesalers, to upper-echelon traffickers.
The third factor, which requires reviewing courts to consider the
"reasonable expectations" of the monitors, recognizes that wiretap monitors
may be justified in intercepting a broader scope of calls in the beginning of a
wiretap investigation before "patterns of relevant and non-relevant phone
calls" emerge. Id. at 434. Those patterns allow monitors to more precisely
tailor their minimization efforts as they gain experience in understanding the
communication practices and tendencies of the targets. These emerging
patterns may show that specific targets routinely discuss both relevant and
non-relevant topics in their conversations. In other words, monitors may learn
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28
over the course of the wiretap investigation that certain targets often discuss
both personal matters and matters relating to the business of drug trafficking in
a single conversation. Such a pattern would justify intercepting a broader
range of calls and listening in on a greater proportion of an individual call,
comparable to the scope of interception that is permitted at the outset of the
wiretap investigation before any patterns are discerned.
Failure to comply with the Wiretap Act's substantive or critical
requirements results in the suppression of evidence. Worthy, 141 N.J. at 381–
86; N.J.S.A. 2A:156A-21. The suppression remedy for a minimization
violation is strictly imposed. Before Catania, the State's failure to minimize
interception of non-relevant conversations resulted only in the suppression of
those particular conversations, rather than the entire wiretap investigation. See
State v. Dye, 60 N.J. 518, 539–42 (1972). The Court in Catania, construing
remedial legislative amendments to the Wiretap Act adopted after Dye,
rejected that approach, noting:
The flaw in this approach was that it would not deter
the State from disregarding the minimization
provision, because only innocent and non-relevant
conversations would be suppressed while the relevant
ones would remain admissible. The Legislature
responded by amending N.J.S.A. 2A:156A-21 to
provide that any minimization violation would result
in the suppression of the "entire contents of all . . .
A-3149-17
29
communications." The Legislature concluded that
only by avoiding such a fragmented approach to
wiretapping such as that espoused by Dye could
minimization violations be deterred. . . . That logic is
applicable here. In keeping with this legislative desire
for a unitary, rather than a fragmented, approach to
wiretapping, we conclude that a defendant who was
party to at least one conversation, innocent or
incriminating, during the course of a wiretap has
standing to suppress the entire wiretap results because
of the State's failure to minimize its interception of
any conversations during the course of that wiretap.
[85 N.J. at 426 (emphasis added) (internal citations
omitted).]
Accordingly, if a reviewing court finds a minimization violation, the
entire contents of all intercepted communications and evidence derived
therefrom must be suppressed. See Worthy, 141 N.J. at 387. This rule "thus
manifests an unequivocal legislative intent to regulate wiretapping as strictly
as possible." Catania, 85 N.J. at 438 (citing S. Judiciary Comm. Statement to
S. 1417 (L. 1975, § 13)). The Supreme Court has further acknowledged that
the Wiretap Act's "exclusionary rule is not conditioned on a predicate finding
of an intentional or deliberate violation or evasion of the Act's requirements."
Worthy, 141 N.J. at 385.
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30
C.
With those guiding principles in mind, we next consider the facts that
were elicited at the suppression hearing. The initial wiretap order was issued
on February 6, 2013 and was renewed on March 4, 2013. The wiretap ran for a
total of sixty-five days and permitted interception at all hours of the day, seven
days a week. At the outset, the wiretap was limited to Derek Fuqua's phone.
As the scope of the racketeering investigation expanded, the wiretap
authorization order was amended to include phones belonging to Tyquan
Fuqua, Rashaun Bryant, and Kevin Harrell. 9
State Police Detective Dan Connolly, who supervised the wiretap
investigation, testified that the monitors attended a meeting at which a deputy
attorney general instructed them as to proper intrinsic minimization
procedures. The monitors were instructed, for example, that they were not
permitted to listen to calls "involving attorneys, doctors, or clergy," but were
told that if they were "unsure what [was] being discussed, [they were to]
continue to monitor the call until some additional patterns and practices [we]re
established."
9
Co-defendants Rashaun Bryant and Kevin Harrell are not parties to this
appeal.
A-3149-17
31
With respect to those patterns and practices, Detective Connolly testified
that Derek Fuqua discussed both personal matters and criminal business in his
conversations. The detective explained: "Derek Fuqua used family and close
friends, not only in a social setting, but they were also part of his criminal
conspiracy and he talked business and socially with these individuals within
the same phone call on multiple occasions." 10
State Police Detective Thomas Kulpinski testified that the wiretap was
administered through a software program called VoiceBox, which is a
"statewide network which facilitates the collection of information when
authorized by court order." Detective Kulpinski explained that to use the
electronic surveillance system, a law enforcement monitor must activate the
program's monitoring function, which would "place that particular target phone
number in a situation where if a communication would come in, the monitor
would . . . be presented with a control window that would come up when an
audio event occurs." The detective further explained that the control window
provides the monitor the ability to listen to the communication live, ignore the
communication before it occurs, or intrinsically minimize portions of a
10
We note that many of those individuals were charged in the State Grand
Jury indictment, including: Tyquan Fuqua (cousin), Cynthia Fuqua (mother),
Alfonso Fuqua (relative), Rahim Fuqua (brother), James Fuqua (relative),
Jennifer Morfa (girlfriend), and Tamara Reichard (girlfriend).
A-3149-17
32
communication as it unfolds. The latter practice, the detective explained, is
commonly referred to as spot monitoring.
Detective Kulpinski further testified that when a monitor minimizes a
communication, there is no way for him or her to listen to the conversation
during the period of minimization. As the detective explained, when the
monitor hits the minimization button, the content is "irrevocably gone from the
system."
During the course of the seven-day suppression hearing, the trial court
listened to the disputed calls that defendants claimed to be improperly
minimized and heard arguments from the parties concerning each of those
specific communications.
The trial court issued a written opinion on May 17, 2016 in which it
made detailed findings with respect to sixty-four calls. The court concluded
that while the State might have made better efforts to minimize several calls,
the monitors made reasonable efforts to adhere to their duty to minimize wi th
subjective good faith. The trial court noted, "[i]n the context of the
contemplated conspiracy involving the numerous persons of interest and the
24-hour wiretap, the monitors ultimately demonstrated good-faith and an
objectively reasonable attempt with the law." The trial court further remarked,
A-3149-17
33
"[t]he record shows reasonable good-faith attempts were made to consistently
minimize and spot check personal, irrelevant, and non-pertinent calls."
In reaching that conclusion, the trial court made specific and detailed
factual findings. 11 The court found, for example, that the monitors had been
instructed on and understood the minimization criteria set forth in Catania and
were further instructed to engage in spot-monitoring. The court viewed those
instructions as "highly persuasive evidence of good-faith intention . . . to
minimize." See Catania, 85 N.J. at 446.
The court also found that "since various family members were involved
in the conversations, and many of the calls were difficult to ascertain the
nature of the conversation, the investigators could reasonably conclude that the
conversations may be pertinent [to criminal activity]." Because the
investigation involved a conspiracy, moreover, the court noted that "broader
11
Derek Fuqua argues in his pro se supplemental merits brief that the trial
court "unquestionably found minimization violations" in fourteen calls. That
is incorrect. See also infra note 12. Defendant conflates a finding that there
was no minimization of a particular call with a finding that the statutory
minimization requirement was violated. As we have noted, the Court in
Catania recognized the short duration of a call makes it difficult for monitors
to determine relevancy. 85 N.J. at 435. Thus, the lack of minimization of a
short-duration call does not necessarily constitute a violation. Accord
Pemberthy, 224 N.J. Super. at 300 ("The fact that entire conversations of brief
duration were recorded, especially at the beginning of the investigation, did
not affect the overall intent to minimize.").
A-3149-17
34
interception [wa]s justified" because "it was necessary to ascertain a full scope
of the conspiracy and identify the participants." The court further noted that
most of the disputed calls were short in duration, and that most of the calls
deemed non-pertinent were minimized.
The trial court applied the three factors set out in Catania, concluding
they weighed in favor of finding objectively reasonable and subjectively good -
faith efforts to minimize. After carefully reviewing the record, we agree with
the trial court's application of the Scott/Catania factors with respect to all of
the disputed calls the trial court specifically analyzed in its written opinion.
The record supports the conclusion, with respect to the calls analyzed by the
trial court, that the State demonstrated both objective reasonableness and
subjective good faith.
We emphasize that, as in Catania, no clear pattern emerged as to either
non-incriminating conversations or non-relevant callers. 85 N.J. at 435. As
the trial court aptly noted, it was not "uncommon for [the callers] to discuss
personal issues with criminal business activity." That made it impossible for
monitors to minimize all non-relevant communication. Spot monitoring, after
all, is not an exact science—there is no precise mathematical formula to
inform monitors when to turn off a live call and when to turn it back on. We
A-3149-17
35
reiterate the Supreme Court's admonition in Catania: "monitors are not
prophets, and thus they are not expected to anticipate and screen out all non -
relevant phone calls. All they are expected to do is make reasonable efforts to
identify innocent, non-relevant phone calls and minimize their interception."
Id. at 445.
Viewed through that pragmatic lens, the trial court's observation that
"better efforts" could have been made in minimizing a "hand full" of calls does
not suggest the monitors violated their objective and subjective good -faith
obligations under the Wiretap Act. The trial court ultimately concluded the
monitors had not violated the Wiretap Act. 12 We agree with that conclusion.
As the Supreme Court aptly noted in State v. Burstein,
Although some additional calls might conceivably
have been minimized, we have never required the
State to minimize its interception of all non-relevant
phone calls. This would require a prescience on the
part of the police that is simply not possible. Rather,
we require only that the State make reasonable efforts
to terminate its interception of non-relevant phone
12
We note that as to call #10,797, which Derek Fuqua made to an automobile
dealership, the trial court stated "[c]learly, this call is non-pertinent and should
have been minimized." However, the court also determined, "[t]he call is of
short duration" and that "throughout the call, the defendant was placed on hold
and various auto commercials were being played over the phone system."
Read in the context of the trial court's ultimate holding, we do not interpret the
court's opinion as finding that the failure to minimize this particular call was a
violation of the Wiretap Act.
A-3149-17
36
calls. Our review of the facts in this case convince us
that such efforts were made here.
[85 N.J. 394, 416 (1981) (emphasis added).]
In performing our review function, we strive to achieve the delicate
balance between avoiding unnecessary intrusion upon personal, non-criminal
conversations on the one hand, and the public safety interest in recording
conversations regarding criminal activity on the other hand. In reaching that
balance, we underscore that the statutory and constitutional benchmarks are
objective reasonableness and subjective good faith, not perfection as viewed
through the lens of hindsight. We also acknowledge that the trial court judge
was a specially-designated wiretap judge 13 well-experienced in the practical
administration and enforcement of the Wiretap Act. Cf. Cesare v. Cesare, 154
N.J. 394, 413 (1998) (recognizing that deference is accorded to factfinding by
13
Wiretap judges are specially designated by order of the Chief Justice
pursuant to N.J.S.A. 2A:156A-2(i), which provides:
"Judge," when referring to a judge authorized to
receive applications for, and to enter, orders
authorizing interceptions of wire, electronic or oral
communications, means one of the several judges of
the Superior Court to be designated from time to time
by the Chief Justice of the Supreme Court to receive
applications for, and to enter, orders authorizing
interceptions of wire, electronic or oral
communications pursuant to this act[.]
A-3149-17
37
Family Part judges because they possess "special jurisdiction and expertise in
family matters"); State v. Harris, 466 N.J. Super. 502, 549 (App. Div. 2021)
(according comparable deference to the findings made by Drug Court judges
"in view of their expertise in addressing 'the unique problems and needs posed
by non-violent, drug-dependent offenders'") (internal citations omitted)).
In this instance, we conclude—with respect to the calls the trial court
analyzed and definitively ruled on—that the trial court properly accounted for
all appropriate factors and circumstances under the Catania/Scott analytical
paradigm, including: the instructions given to the monitors; the expansive
nature of the drug distribution conspiracy and the large number of suspected
co-conspirators; the timing of the calls in relation to the ongoing wiretap
investigation; the established pattern and practice of the targets mixing
personal and criminal business in their conversations; the duration of the
disputed calls; the proportion of those calls that were minimized; the number
of times those calls were turned off and on again; and the percentage of non -
monitored call time. We therefore affirm the trial court's decision with two
caveats.
First, we note the trial court's conclusion that the monitoring of call
#1,117 was not unreasonable was contingent upon the court receiving
A-3149-17
38
additional information from the State. The content of that call focused on
intimate sexual relations, which unquestionably fall within the heartland of the
privacy concerns expressed in the Wiretap Act as well as Catania and its
progeny. Specifically, the trial court's written opinion reads:
Call #1[,]117 – 3/18/2013: [Two] minutes [nineteen]
seconds. Call deemed non-pertinent. It was not
minimized. Tyquan Fuqua speaks to "SB" regarding
sex. Defense argues this is a personal call. It is not
the State's business. Furthermore, this was weeks into
the wiretap. The State argues that SB was a co-
conspirator who ultimately was stopped on the New
Jersey Turnpike with Tyquan Fuqua with 12,000 bags
of [h]eroin. Additionally, the State has other calls
regarding the two individuals where they discuss
personal issues and drugs in the same call. The
[c]ourt finds the call should have been stopped and/or
monitored. The nature of the call early on was all
sexual in nature. The call is somewhat short in
duration. Clearly, the parties are discussing a personal
relationship. If the State has another call before
March 18, 2013, where the parties discuss criminal
activity, then the [c]ourt would be of the mindset that
listening to the call would not have been unreasonable.
[The court] ask[s] the State to provide this information
to the [c]ourt within [ten] days.
[(emphasis added).]
The record before us does not indicate whether the State provided the
requested information concerning earlier intercepted calls in which the
participants discussed both personal matters and CDS-related matters. Nor did
A-3149-17
39
the trial court issue a revised or supplemental opinion accounting for any such
additional information. We therefore are constrained to remand the matter for
the trial court to make additional findings, as appropriate, and to issue a
definitive ruling whether the failure to minimize this call constitutes a
violation of the Wiretap Act. If the State has not already supplied the
information requested in the trial court's written opinion, we leave to the
discretion of the trial court as to the manner by which the State shall provide
that information to the court and defense counsel. We also leave to the trial
court's discretion whether to require or accept additional submissions from the
parties or to convene a new oral argument.
Second, defendant Tyquan Fuqua identifies on appeal five calls that
were played back during the suppression hearing but were not addressed in the
court's written opinion. Specifically, the trial court did not make findings of
fact and law with respect to the following disputed calls: #46 (March 15,
2013); #514 (March 9, 2013); #523 (March 9, 2013); #11,895 (March 25,
2013); and #12,029 (March 26, 2013).
In this we decline to exercise original jurisdiction. See Tomaino v.
Burman, 364 N.J. Super. 224, 234–35 (App. Div. 2003) ("Our original
factfinding authority must be exercised only 'with great frugality and in none
A-3149-17
40
but a clear case free of doubt.'") (quoting In re Boardwalk Regency Corp.
Casino License Application, 180 N.J. Super. 324, 334 (App. Div. 1981)).
Instead, we remand the matter for the trial court to make findings of fact and
law with respect to these five calls, comparable in detail to the findings the
court made with respect to the other calls analyzed in its written decision.
We offer no opinion whatsoever on whether the State violated the
Wiretap Act's minimization requirement with respect to any of these five calls.
We leave to the discretion of the trial court whether to convene a new
evidentiary hearing or oral argument to resolve factual or legal disputes
concerning these calls. To facilitate the trial court's analysis on remand, we
direct the parties to provide the court with their appellate submissions
pertaining to these five calls if they have not already done so.
If the trial court on remand determines the Wiretap Act was violated, it
shall invoke the exclusionary remedy as required under Catania, 85 N.J. at
426, and shall vacate the defendants' guilty pleas.
D.
Finally, with respect to the alleged violations of the Wiretap Act, we
turn to defendants Derek and Tyquan Fuqua's contention the wiretap
recordings were not sealed in accordance with N.J.S.A. 2A:156A-14, thus
A-3149-17
41
requiring their suppression. 14 On April 3, 2013—the same day the wiretap
authorization order expired—the State took the recordings and associated
papers to the Assignment Judge to be sealed. The judge instructed the State to
come back on April 9, 2013, at which time the recordings were sealed.
Defendants subsequently moved to suppress the recordings, arguing the six -
day delay15 violated N.J.S.A. 2A:156A-14. Defendants appeal from the trial
court's March 16, 2016 oral opinion denying the motion on the grounds that
the State provided a satisfactory explanation for the delay. 16 We affirm
substantially for the reasons set forth in the trial court's oral opinion. We add
the following comments.
14
Defendants Thomas and Virgil did not raise this issue on appeal.
15
We note that only four of those days were business days.
16
We granted defendant Derek Fuqua's motion for leave to file a pro se reply
brief after this matter was submitted. The pro se reply brief raises new
arguments regarding the sealing delay that were not addressed in his counsel's
merits brief or his own pro se supplemental merits brief. He argues, for
example, it is "incredulous" that the Assignment Judge could direct the State to
return on a later date to seal the records and yet grant an extension of the
wiretap authorization during that time period.
"It is well-settled that introduction of a new issue by way of a reply brief
is improper." Musto v. Vidas, 333 N.J. Super. 52, 69 (App. Div. 2000); see
also State v. Smith, 55 N.J. 476, 488 (1970); Pressler & Verniero, Current N.J.
Court Rules, cmt. on R. 2:6-5 (2021). In any event, defendant's newly raised
arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-
3(e)(2).
A-3149-17
42
N.J.S.A. 2A:156A-14 provides in pertinent part:
Immediately upon the expiration of the [wiretap
authorization] order or extensions or renewals thereof,
the tapes, wires[,] or other recordings shall be
transferred to the judge issuing the order and sealed
under [his or her] direction. . . . The presence of the
seal provided by this section, or a satisfactory
explanation for its absence, shall be a prerequisite for
the disclosure of the contents of any wire, electronic
or oral communication, or evidence derived therefrom
. . . .
[(emphasis added).]
In State v. Cerbo, the Court held that "[s]ince the delay in sealing is
tantamount to the absence of a seal under N.J.S.A. 2A:156A-14, the statutory
requirement that there be a satisfactory explanation for such 'absence' is
applicable to the delay in sealing." 78 N.J. 595 (1979). As the plain langu age
of N.J.S.A. 2A:156A-14 makes clear, wiretap recordings are not automatically
suppressed when they are not sealed "immediately." Rather, the failure to
immediately seal the records can be excused, provided there is a satisfactory
explanation. The plain text also makes clear that sealing is done "under the
[judge's] direction."
In this instance, the gravamen of the State's argument is not that a
wiretap judge was unavailable. Rather, the State argues it was justified in
A-3149-17
43
complying with the directions given by the Assignment Judge who issued the
original wiretap authorization order.
We believe the State was not obliged to disregard the Assignment
Judge's unambiguous instruction and find another judge authorized to seal the
recordings. We agree with the trial court that the State's dutiful compliance
with the Assignment Judge's explicit direction was appropriate and constitutes
a satisfactory explanation for the delay in sealing the recordings. We note that
another provision of the Wiretap Act relating to sealing provides in pertinent
part:
Applications made and orders granted pursuant to this
act and supporting papers shall be sealed by the court
and shall be held in custody as the court shall direct
and shall not be destroyed except on order of the court
and in any event shall be kept for 10 years. They may
be disclosed only upon a showing of good cause
before a court of competent jurisdiction.
[N.J.S.A. 2A:156A-15 (emphasis added).]
This provision—which pertains to the safekeeping of wiretap records after
they are sealed—also expressly recognizes the authority of the wiretap judge
to direct how confidential wiretap-related records are to be held by the State.
We add that defendants' reliance on our decision in State v. Barisse 173
N.J. Super. 549 (App. Div. 1980), aff'd sub. nom. State v. Burstein, 85 N.J.
A-3149-17
44
394 (1981), is misplaced. We commented in Barisse, "sealing can be, and in
the absence of the availability of the issuing judge[,] must be[] obtained from
another judge." 173 N.J. Super. at 551. However, the formulation of that
principle was tempered by the Supreme Court in Burstein, which explained the
sealing statute "should henceforth be construed so as to allow the tapes to be
sealed by any authorized judge when the judge who issued the order is
unavailable. . . ." 85 N.J. at 402 n.2 (emphasis added).
We do not read the Supreme Court's reformulation in Burstein to require
the State find another wiretap judge in contravention of a direct instruction by
the Assignment Judge to return with the recordings for sealing at a later date.
We thus conclude it was objectively reasonable for the State to comply with
and rely on the Assignment's Judge's specific direction. Cf. United States v.
Ojeda Rios, 495 U.S. 257, 266 (1990) (explaining that to establish a
"satisfactory explanation" under the analogous provision of the federal wiretap
statute, the prosecutor "is not required to prove that a particular understanding
of the law is correct but rather only that its interpretation was objectively
reasonable at the time").
We also agree with the trial court that in this instance, there was only a
minor delay in sealing the wiretap recordings and that there is no suggestion
A-3149-17
45
the recordings were tampered with while in the State's custody prior to their
sealing by the court. We note that federal cases have permitted significantly
longer delays in sealing wiretap records under the analogous federal statute.
See e.g. United States v. Pedroni, 958 F.2d 262, 265 (9th Cir. 1992) (admitting
recordings after fourteen-day delay); United States v. Lawson, 545 F.2d 557,
564–65 (7th Cir. 1975) (admitting recordings after fifty-seven-day delay); see
also Ates, 217 N.J. at 269 ("Because the Wiretap Act is closely modeled after
Title III [the federal wiretap law], we give careful consideration to federal
decisions interpreting the federal statute.") (citing In re Wire Commc'n, 76 N.J.
266, 262 (1978)).
III.
We next address Thomas's contention the trial court erred in denying his
motion to suppress CDS discovered during the search of a vehicle operated by
co-defendant Eddie Wall 17 in which Thomas was a passenger. Thomas now
argues the discovery of the CDS in the vehicle was the fruit of the unlawful
deployment of a drug detection canine. We note this was not the legal theory
that Thomas and Wall first argued before the Law Division judge. Rather, the
gravamen of their argument initially was that the "directed" stop was unlawful
17
Wall is not a party to this appeal.
A-3149-17
46
because the detaining officers had not observed a motor vehicle violation and
the stop was a pretext. 18 Thomas and Wall further argued the plain view
seizure of the CDS on the floor was unlawful because the officers were not
legitimately present at the moment they observed the CDS by reason of the
unlawful stop. They likewise argued that but for the unlawful stop, the
officers would not have noticed an apparent trap door indicating a hidden
18
The term "directed stop" refers to a planned investigative detention where
uniformed patrol officers simulate a spontaneous motor vehicle stop for a
traffic infraction under Delaware v. Prouse, 440 U.S. 648 (1979). This is done
so that the vehicle occupants are not alerted to the fact that they are the
subjects of an ongoing criminal investigation.
Although such motor vehicle encounters are pretextual, they are not
unlawful—even when a motor vehicle infraction is not committed—so long as
there is reasonable articulable suspicion to believe a vehicle occupant is
involved in unlawful activity to justify an investigative detention under Terry
v. Ohio, 392 U.S. 1 (1968). See Whren v. United States, 517 U.S. 806, 813
(1996) (holding reasonableness of stop does not depend on subjective
motivations of officer and permitting police to investigate criminal activity
under the guise of enforcing traffic laws); State v. Bruzzese, 94 N.J. 210, 219
(1983) ("We hold that the proper inquiry for determining the constitutionality
of a search-and-seizure is whether the conduct of the law enforcement officer
who undertook the search was objectively reasonable, without regard to his or
her underlying motives or intent."); see also United States v. Hensley, 469 U.S.
221 (1985) (recognizing a collective law enforcement knowledge doctrine that
permits an officer to act on the basis of information provided by another
officer or bulletin).
Thomas does not contend on appeal the stop was unlawful on this
ground and thus has abandoned the "pretext stop" argument. See Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on
appeal is deemed waived.").
A-3149-17
47
compartment. Accordingly, they argued the ensuing search warrant was a fruit
of the unlawful stop.
Thomas and Wall did not initially contend their rights were violated by
the manner in which the dog inspected the vehicle. Regarding that
examination, Thomas in his Law Division brief merely stated, "[t]he officers
present at the scene requested the assistance of a narcotics canine and Officer
D. Williams arrived on the scene with his canine partner Samu who allegedly
gave a positive indication on the right interior portion of the vehicle."
Thomas's Law Division brief contained no further mention of the canine
inspection nor did it offer any legal argument claiming the use of the canine
was improper. As we next explain, the contention that the canine unlawfully
entered the vehicle emerged well after the suppression hearing was completed.
The suppression hearing was conducted over the course of two days on
May 18 and June 13, 2015. We briefly summarize the pertinent facts.
On March 18, 2013, State Police intercepted a text message from
Thomas to Derek Fuqua requesting a "dollar and a half." State Police
interpreted that to be a request to purchase heroin. Later that day, State Police
conducted a visual surveillance of Derek Fuqua's residence. They observed
Thomas and Wall arrive in a Dodge Caravan and meet with Fuqua. Fuqua
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48
removed a bag from the trunk of a Chevrolet Camaro. Thomas and Fuqua then
entered the Camaro. After a short time, Thomas exited the Camaro holding
something against his body, which the surveilling officers believed to be the
bag that Fuqua had removed from the trunk of the Camaro. Thomas entered
the Caravan and sat in the passenger seat. The Caravan then drove off. State
Police contacted the Jersey City Police Department (JCPD) and instructed
them to conduct a directed stop of the Dodge Caravan, informing them that the
vehicle's occupants were suspected of engaging in a CDS transaction and that
Thomas had active arrest warrants.
As instructed, JCPD officers stopped the Caravan, telling the occupants
the reason for the stop was failure to obey a traffic light. The driver of the
Caravan, Wall, was unable to produce a valid New Jersey vehicle registration.
The officers checked the automated traffic system and confirmed that Thomas
had several active traffic warrants. He was placed under arrest. As the
officers were removing Thomas from the vehicle, they observed a glassine bag
on the floor between the front and back seats. The glassine bag was labeled
"Jumping Jack" and based on their training and experience, the officers
believed it to contain heroin. The officers also noticed aftermarket
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49
modifications to the vehicle consistent with the installation of a trap door,
indicating a hidden compartment.
The officers requested the assistance of a narcotics detection canine. 19
The dog alerted to the presence of CDS in the vehicle. The minivan was then
transported to JCPD headquarters and police obtained a search warrant. The
ensuing search of the minivan recovered a clear bag containing approximately
200 grams of unpackaged heroin along with 100 individually wrapped bags of
suspected heroin in the hidden compartment.
Importantly for purposes of this appeal, the testimony elicited at the
suppression hearing concerning the dog's examination of the vehicle is sparse,
reflecting that the defense argument at the time of the suppression hearing did
not challenge the lawfulness of the canine sniff. JCPD Lieutenant Anthony
Musante testified on direct examination that the "canine indicated on the
passenger side of the vehicle the presence of narcotics."
On cross-examination, Wall's counsel queried the lieutenant as follows:
Defense So, a drug dog is brought down to the
Counsel: location, and the drug dog, basically,
goes around the vehicle, in the vehicle,
19
It is not clear from the limited record before us whether the officers
summoned the canine to make it appear the encounter was an unplanned traffic
stop during which the officers' suspicions arose spontaneously. See supra note
18.
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and ultimately hits on an area on the
right interior portion of the vehicle,
correct?
Lieutenant Correct.
Musante:
Defense And it's at that point, based upon the hit
Counsel: being made, that what happens?
Lieutenant That we apply for a search warrant.
Musante:
Defense And the warrant then is based upon the
Counsel: motor vehicle stop, the plain view
observation, and this hit by the drug
dog when he's—goes to the interior
portion of the car, and supposedly
indicates that there's a potential[—]that
there's something concealed in the car?
Lieutenant That is correct.
Musante:
JCPD Officer Joseph Anzivino also testified at the suppression hearing.
His account of the canine inspection was even less detailed. He testified that
they requested a canine response unit and that "[t]he canine . . . was trained in
narcotics detection. He indicated that there was a positive indication of CDS
in the vehicle, at which point we secured the vehicle and took it back to [police
headquarters], and I prepared a search warrant."
The dog's handler did not testify.
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The trial court did not rule immediately. On June 23, 2015—twenty
days after the conclusion of the suppression hearing—Wall filed a
supplemental letter-brief arguing for the first time that the evidence seized
from the hidden compartment must be suppressed based on Lieutenant
Musante's testimony that suggests the dog at some point entered the vehicle.
Wall argued the dog's warrantless entry of the minivan was an unconstitutional
search. Thomas did not file a supplemental motion brief and did not join
Wall's brief.
On October 22, 2015, the trial court rendered a written opinion denying
defendants' joint suppression motion. The trial court found the manner in
which police used the canine was unconstitutional. While recognizing that
police may use a drug detection dog to examine the outside of a vehicle
without a warrant or probable cause, the court reasoned—correctly, in our
view—the canine could not be used to inspect the interior of the vehicle
without first obtaining a search warrant or consent unless exigent
circumstances excused the failure to obtain a warrant. With respect to factual
findings, the court stated that it was "not persuaded that the canine's search
was limited only to the exterior of the defendants' vehicle." To support this
finding, the court relied on Lieutenant Musante's brief affirmative responses
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when he was asked on cross-examination whether the canine searched "in the
vehicle" and whether the dog went "to the interior portion of the car."
The trial court further concluded that there were no exigent
circumstances that excused the failure to obtain a warrant before allowing the
dog to inspect the interior of the vehicle. The court reasoned that Wall and
Thomas had already been arrested and the glassine bag observed in plain view
on the floor of the vehicle had already been confiscated. The court found there
were no other exigent circumstances to justify an immediate roadside search of
the vehicle.
Based on these findings, the court concluded the canine was improperly
used to perform a search of the interior of the vehicle and therefore the dog's
positive alert to CDS was a fruit of the unlawful entry. Noting the dog sniff
was used in conjunction with other evidence in support of the search warrant
application, the court nonetheless sustained the warrant, citing to State v.
Ortense, 171 N.J. Super. 453 (App. Div. 1980), for the proposition that "if the
supporting affidavit contains information both lawfully and unlawfully
obtained and the lawfully obtained information is adequate to establish
probable cause, the warrant will be deemed properly issued." The court
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determined that the other facts included in the warrant affidavit were sufficient
to establish probable cause to believe CDS was concealed in the vehicle.
Specifically, the court found independent probable cause based on the
officers' training in narcotics detection, their plain view observation of the
glassine bag containing suspected heroin, and their observation of aftermarket
modifications to the Caravan indicating the presence of a hidden "trap door"
compartment. The court concluded those circumstances provided a sufficient
independent basis upon which to sustain the validity of the search warrant.
The court thereupon denied the motion to suppress.
Thomas and the State take issue with different portions of the trial
court's opinion. Thomas argues the court did not address all of the elements of
the independent source doctrine spelled out by our Supreme Court in Holland.
The State does not dispute the trial court did not complete the three-prong
independent source analysis required by Holland but argues resort to that
exception to the exclusionary rule is unnecessary because the canine inspection
was lawful.
A.
We first address the State's contention that the trial court erred in finding
that the canine inspection of the Caravan was unlawful. In United States v.
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Place, the United State Supreme Court held that a canine sniff does not
constitute a "search" within the meaning of the Fourth Amendment. 462 U.S.
696, 706–07 (1983). The Court characterized canine sniffs as sui generis
because they do not reveal noncontraband items. Id. at 707.
Place involved the use of a drug detection canine to inspect the
defendant's luggage at an airport. In Indianapolis v. Edmond, the Court
applied the same rationale to the scent examination of a vehicle, reiterating
that a canine sniff "is not designed to disclose any information other than the
presence or absence of narcotics." 531 U.S. 32, 40 (2000). The Court also
recognized that the sniff "does not require entry into the car." Ibid. In other
words, a positive alert from a canine sniff made from outside a vehicle can
support the inference that CDS is contained within the vehicle. The dog thus
does not have to enter the vehicle to establish probable cause to believe that
CDS is concealed within. See Florida v. Harris, 568 U.S. 237, 246–47 (2013)
(holding that a drug detection canine's sniff of a vehicle's exterior and alert
provides probable cause to believe it contained illegal drugs, when the canine
either has been formally certified as reliable or has recently successfully
completed a training program testing its proficiency in locating drugs).
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In Illinois v. Caballes, 543 U.S. 405 (2005), the Court provided further
guidance on the use of drug detection canines deployed to the scene of a motor
vehicle stop. The Court held "a dog sniff would not change the character of a
traffic stop that is lawful at its inception and otherwise executed in a
reasonable manner, unless the dog sniff itself infringed [upon the defendant's]
constitutionally protected interest in privacy." Id. at 408 (emphasis added).
The Court concluded that the canine sniff of the exterior of the vehicle did not
infringe upon the defendant's privacy interests. Id. at 408–10. The Court thus
made clear that the officers did not need reasonable suspicion, much less
probable cause, to believe the defendant was engaged in narcotics trafficking
before they could subject a vehicle to a canine sniff. Id. at 408.
The New Jersey Supreme Court has since embraced the United States
Supreme Court's rationale that canine sniffs do not constitute a search. In
State v. Dunbar, our Court
endorse[d] the federal determination that a canine
sniff is sui generis and does not transform an
otherwise lawful seizure into a search that triggers
constitutional protections.[] Place, . . . 462 U.S. at
706–07; Edmond, . . . 531 U.S. at 40. Canine sniffs
do not involve the unveiling of noncontraband items
that would otherwise remain unexposed to public view
and signal only the presence or absence of illegal
items. Place, . . . 462 U.S. at 707. Canine sniffs
A-3149-17
56
therefore constitute a unique procedure that is less
intrusive than a search.
[229 N.J. 521, 539 (2017).]
The Dunbar Court also expressly adopted "the federal standard for
determining the manner in which an officer may conduct a canine sniff during
an otherwise lawful traffic stop." Ibid. Specifically, the Court held that an
officer in this State "does not need reasonable suspicion independent from the
justification for a traffic stop in order to conduct a canine sniff." Ibid. (citing
Caballes, 543 U.S. at 408).
We emphasize, however, that this legal principle applies only to a canine
sniff of the exterior of a vehicle. A canine sniff conducted while inside a
detained vehicle raises constitutional concern, not because the sniff can reveal
noncontraband belongings, but rather because any law enforcement incursion
into a protected space constitutes a privacy intrusion for purposes of the Fourth
Amendment and Article I, paragraph 7 of the New Jersey Constitution. See
Caballes, 543 U.S. at 408 (recognizing any official conduct, including a dog
sniff, would be problematic if it were to infringe upon a constitutionally
protected privacy interest); Edmond, 531 U.S. at 40 (noting a canine sniff
"does not require entry into the car.").
A-3149-17
57
Accordingly, although a drug detection canine sniff is not deemed to b e
a traditional search because it can only reveal the presence of contraband,
Caballes, 543 U.S. at 409, the canine must be lawfully present at the moment
of its scent inspection. Cf. Horton v. California, 496 U.S. 128, 137 (1990)
(explaining that for the plain view/sense doctrine to apply, "not only must the
officer be lawfully located in a place from which the object can be plainly
seen, but he or she must also have a lawful right of access to the object
itself."). In sum, whether labeled a "search" or not, a dog's physical entry into
a lawfully detained vehicle for the purpose of conducting a sniff inspection
constitutes a privacy intrusion that triggers the probable cause and warrant
requirements.20
We next consider the legal standards governing when police may enter a
vehicle for investigative purposes without first obtaining a warrant. It is well -
20
We note that not all police entries into a vehicle to inspect for concealed
objects require probable cause and a warrant or warrant exception. The so -
called "vehicle frisk" doctrine allows police to enter the passenger cabin of a
vehicle to conduct a limited inspection for weapons based on reasonable
articulable suspicion rather than probable cause. See State v. Gamble, 218
N.J. 412 (2014). That doctrine does not apply here. The State did not argue
there was a basis for the officers to believe that weapons were present.
We add that entry by a drug-detection canine does not fall under the
rubric of the vehicle frisk doctrine because an alert would not signal the
presence of weapons. We offer no opinion on whether a police canine trained
to detect firearms, ammunition, or explosives might be used to facilitate a
vehicle frisk for weapons.
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58
established that warrantless searches and seizures are "presumptively invalid";
thus, "the State bears the burden of proving "by a preponderance of the
evidence that a warrantless search or seizure falls within one of the few well -
delineated exceptions to the warrant requirement." State v. Mann, 203 N.J.
328, 337–38 (2010) (quoting Elders, 192 N.J. at 246).
Applying that foundational principle to the present context, we believe
that absent consent, a warrantless drug detection canine sniff of the interior of
a vehicle—that is, an examination that entails the canine entering the vehicle—
must satisfy the elements of the automobile exception to the warrant
requirement. Otherwise, the warrantless police entry into the vehicle for
investigative purposes would be unlawful, rendering a positive canine alert
inadmissible as a fruit of the unlawful entry.
In State v. Pena-Flores, our Supreme Court held that the automobile
exception under the New Jersey Constitution required the State to prove
exigent circumstances that would make it impracticable to obtain a warrant.
198 N.J. 6, 11, 28 (2009). Six years after Pena-Flores was decided, the Court
reversed course in State v. Witt, 223 N.J. 409 (2015), displacing the Pena-
Flores exigency test. The rule announced in Witt authorizes an automobile
exception search if (1) police have probable cause to believe the vehicle
A-3149-17
59
contains contraband or evidence of an offense, and (2) the circumstances
giving rise to probable cause are unforeseeable and spontaneous. Id. at 447.
However, the Witt reformulation of the automobile exception applies only
prospectively, that is, to searches conducted after Witt was decided on
September 24, 2015. Id. at 449–50. In the case before us, the vehicle stop and
ensuing search occurred before Witt was decided. Accordingly, under the
Pena-Flores formulation that was then in force, police could not enter the
Caravan to advance their investigation absent exigent circumstances, which, as
the trial court correctly found, did not exist in this case.
The State urges us to follow a line of federal cases holding that a
canine's entry of a vehicle to examine its interior does not constitute a privacy
intrusion for purposes of constitutional analysis unless the dog was directed by
the police to enter the vehicle or unless officers encouraged or facilitat ed the
dog's entry. In United States v. Pierce, for example, the window of the
detained vehicle was open, creating an opportunity for the dog to breach the
interior. 622 F.3d 209, 212–14 (3d Cir. 2010). The canine jumped through the
open window and sniffed throughout the interior of the car. Id. at 211–12.
The Third Circuit Court of Appeals held that because the dog entered the car
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without prompting and was following its "natural migration from [its] initial
exterior sniffs," the canine entry was not unlawful. Id. at 213–15.
That analytical approach, which we refer to as the "instinctive-reaction"
principle, has been adopted by other federal appellate courts. See United
States v. Sharp, 689 F.3d 616, 619–620 (6th Cir. 2012) (holding "a trained
canine's sniff inside of a car after instinctively jumping into the car is not a
search that violates the Fourth Amendment as long as the police did not
encourage or facilitate the dog's jump"); United States v. Lyons, 486 F.3d 367,
373 (8th Cir. 2007) ("Absent police misconduct, the instinctive actions of a
trained canine do not violate the Fourth Amendment."); United States v. Stone,
866 F.2d 359, 364 (10th Cir. 1989) ("dog's instinctive actions did not violate
the Fourth Amendment"); United States v. Vasquez, 555 F.3d 923, 930 (10th
Cir. 2009) ("[W]e have upheld the legality of such a sniff during a lawful
detention when . . . (1) the dog's leap into the car was instinctual rather than
orchestrated[,] and (2) the officers did not ask the driver to open the point of
entry . . . used by the dog."); cf. United States v. Pulido-Ayala, 892 F.3d 315,
319–20 (8th Cir. 2018) (holding if a dog's access to a car's interior is
facilitated by the conduct of the driver or passenger leaving the door open,
officers have no obligation to then close the door and the ensuing entry is not
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unlawful); United States v. Winnington, 140 F.3d 1328, 1331 (10th Cir. 1998)
(holding canine sniff became a search in violation of Fourth Amendment when
"the officers themselves opened the door" and "facilitate[d] a dog sniff of the
van's interior") (emphasis added).
The record as it presently stands does not support the State's reliance on
these federal decisions because no information was elicited at the suppression
hearing concerning many of the circumstances deemed to be relevant in those
cases. For example, it is not clear from the present record whether: (1) the dog
first examined the Caravan's exterior and whether it alerted to the presence of
CDS before entering the vehicle; (2) the dog entered the vehicle via an open
window or door; (3) the door or window had been opened by an occupant, or
by police, and for what purpose; (4) the door or window was left open by an
occupant, or by an officer; (5) the dog jumped completely into the vehicle or
whether only its head/nose broke the plane of the vehicle interior in the course
of conducting an exterior sniff; 21 or (6) the dog's entry was on the command of
21
We surmise that a police handler would be able to exercise greater control
in preventing his or her canine partner from fully entering a vehicle than in
preventing the dog from briefly poking its nose partially into a vehicle through
an open door or window in the course of conducting an otherwise lawful
exterior examination. The latter circumstance might present a less intrusive—
if not minimally intrusive—physical incursion for purposes of determining the
objective reasonableness of the handler's conduct. Cf. State v. Mandel, 455
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or was facilitated by the handler, or instead was an instinctive reaction by the
animal.
Given the dearth of information elicited at the suppression hearing
regarding the circumstances of the canine sniff, we decline to issue what
essentially would be an advisory opinion based more on speculation than on
well-supported factual findings by the trial court. We thus offer no opinion on
whether, under the New Jersey Constitution, 22 a drug detection canine is
N.J. Super. 109, 115 (App. Div. 2018) ("[It is not clear] whether an officer
conducts a search by momentarily placing his head into an open car
window. In New Jersey, no reported case appears to address this
question. However, other courts that have ruled on the issue have generally
held this 'constitute[s] a "search" for Fourth Amendment purposes.'" (internal
citations omitted)). So too we might consider it relevant whether the handler
took steps to remedy an unauthorized instinctive entry by ordering the dog to
exit the vehicle immediately.
To ensure a proper record is created to address the State's novel legal
argument, we deem it appropriate for the trial court to make specific findings
concerning the degree to which the dog entered the vehicle, the length of time
it was inside, and the role the handler played not only in facilitating the
incursion, but also in minimizing/remediating an instinctive incursion .
22
As we have noted, in Dunbar, our Supreme Court "adopt[ed] the federal
standard for determining the manner in which an officer may conduct a canine
sniff during an otherwise lawful traffic stop." 229 N.J. at 539. We do not
interpret that statement to mean that the Court tacitly embraced all federal
precedents pertaining to canine sniffs, including the opinions of various Circuit
Courts of Appeals accepting the instinctive-reaction principle. Rather, we
believe the Court would carefully scrutinize that body of caselaw to determine
whether the instinctive-reaction principle is fully consonant with the interests
embodied in Article I, Paragraph 7 of our State Constitution. As the Court
noted in Witt, "[w]e have not hesitated to find that our State Constitution
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deemed to be a law enforcement instrumentality such that its physical intrusion
into a constitutionally protected space, whether instinctive or not, constitutes
police action attributable to its human partner, thus requiring a warrant or
warrant exception.
We emphasize that in this instance—as is often the case—the outcome of
the search-and-seizure contest requires analytical precision that in turn
depends on a record that nails down the precise nature, timing, and sequence
of all constitutionally significant events. The careful review of police actions
and decisions requires a painstaking step-by-step analysis that identifies
precisely (1) when a Fourth Amendment liberty or privacy intrusion occurs;
(2) the legal standard triggered by that intrusion (e.g., reasonable suspicion,
probable cause, the warrant requirement, etc.); and (3) whether the liberty or
privacy intrusion was justified at the moment it occurred, applying the
governing legal standard to the totality of the circumstances known to police at
that moment.
provides [New Jersey] citizens with greater rights . . . than those available
under the United States Constitution." 223 N.J. at 409 (citing Lewis v. Harris,
188 N.J. 415, 456 (2006)). Accord State v. Carter, __ N.J. __, __ (2021) (slip
op. at 40) ("On a number of occasions, this Court has found that the New
Jersey Constitution 'affords our citizens greater protection against
unreasonable searches and seizures' than the Fourth Amendment does."
(internal citations omitted)).
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That leads us to the State's contentions regarding the sparse record
concerning the circumstances of the canine sniff. As we have noted, as a
general rule, the State bears the burden of justifying a warrantless search or
seizure. See Mann, 203 N.J. at 337–38; see also State v. Pineiro, 181 N.J. 13,
19 (2004) (recognizing a warrantless search or seizure is presumed invalid and
the State as the party seeking to validate a warrantless search has the burden of
proving its validity). The State nonetheless argues that it should not bear the
burden of establishing that the procedures used during the canine sniff were
constitutionally adequate because the issue was not raised before or during the
suppression hearing. The State cites Witt for the proposition that it should not
bear the burden of proving the lawfulness of the canine sniff because it was not
given notice of the need to elicit more fulsome testimony.
In Witt, the Court rejected the defendant's challenge to the lawfulness of
a stop because the defendant "did not challenge the validity of the motor-
vehicle stop . . . in either his brief or argument before the trial court." 2 23 N.J.
at 418. Rather, the challenge to the stop was raised for the first time on
appeal. Ibid. In rejecting the defendant's unlawful stop contention, the Court
rejected the suggestion that "the State [be required to] disprove issues not
raised by the defense at a suppression hearing," as such a holding "would
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compel the State to cover areas not in dispute from fear that an abbreviated
record will leave it vulnerable if the defense raises issues for the first time on
appeal," thus needlessly lengthening the suppression hearing process. Ibid.
Accordingly, because the State in Witt was "deprived of the opportunity to
establish a record that might have resolved the issue through a few questions,"
the Court held that the lawfulness of the stop in that case had not been
preserved for appellate review. Id. at 418–19.
We note that in this instance, in contrast to Witt, the newly-minted
defense legal theory was not raised for the first time on appeal. Co-defendant
Wall raised the canine sniff argument to the trial court, but only after the
suppression hearing had wrapped up. Because the trial court ruled on the
canine sniff issue, moreover, we are permitted—indeed, obliged—to review
the court's suppression ruling in its entirety. Certainly, Thomas is not
procedurally barred in these circumstances from asserting on appeal that the
trial court correctly ruled that the canine sniff was unlawful. Cf. Pressler &
Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2021) (noting that
appellate courts may consider arguments so long as the "issue was raised in the
trial court even if [the] argument before the trial court was based on a different
theory from that advanced in the appellate court"). Nor does this unusual
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procedural posture require us to apply the plain error standard of review to
defendant's contention. See R. 2:10-2 (permitting an appellate court to review
an issue not raised below applying the plain error standard). Here, the issue
was raised below—albeit belatedly—and was ruled upon by the trial court.
Though we do not agree that the State bears no burden in proving the
lawfulness of the canine sniff, we do concur with the State's argument that the
failure to raise the dog sniff issue until after the evidentiary hearing was
completed "deprived [the State] of the opportunity to establish a record that
might have resolved the issue through a few questions." Witt, 223 N.J. at 418–
19; see also State v. Robinson, 200 N.J. 1, 21 (2009) ("[T]he failure to raise
defendant's present claim during the motion to suppress denied the State the
opportunity to confront the claim head-on; it denied the trial court the
opportunity to evaluate the claim in an informed and deliberate manner; and it
denied any reviewing court the benefit of a robust record within which the
claim could be considered.")
As we have noted, our deference to a trial court's factual findings at a
motion to suppress presupposes those findings are supported by sufficient
credible evidence in the record. Evans, 235 N.J. at 133; Robinson, 200 N.J. at
15. Furthermore, we are not bound in any event by a trial court's
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interpretations of the legal consequences that flow from established facts. See
Manalapan, 140 N.J. at 378.
In this instance, we believe the abbreviated record is inadequate to
support the trial court's conclusion that the canine sniff was unlawful. By way
of example, the trial court in its written decision commented that it was "not
persuaded that the canine's search was limited to the exterior of the defendant's
vehicle." That is not a definitive finding that the canine did not first examine
the exterior of the vehicle and signal the presence of CDS before entering the
vehicle. Indeed, the court's phraseology could be read to imply that there had
been an exterior canine sniff that was followed by an interior sniff. Moreover,
Lieutenant Musante's affirmative response to counsel's question that the dog
"goes around the vehicle" and "ultimately hits" does not preclude a finding that
the dog first examined the exterior of the Caravan and alerted to the presence
of CDS before entering the vehicle. If the dog alerted while still out side the
vehicle, that alert would not be subject to the exclusionary rule and could be
considered in determining whether there was probable cause to believe there
was CDS in the vehicle, see Harris, 568 U.S. at 246–47, thus rendering any
subsequent alert made by the dog from inside the vehicle redundant for
purposes of the warrant application.
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68
We decline to speculate on what actually happened during the directed
stop with respect to the deployment of the canine. Nor are we prepared to
exercise original jurisdiction to fill in the gaps in the record. See R. 2:10-5;
Tomaino, 364 N.J. Super. at 234–35 ("Our original factfinding authority must
be exercised 'with great frugality and in none but a clear case free of doubt.'")
(quoting In re Boardwalk Regency Corp. Casino License, 180 N.J. Super. 324,
334 (App. Div. 1981).
We therefore remand for the trial court to convene a new suppression
hearing to supplement the abbreviated record unless the parties agree to
stipulate to the relevant facts concerning the canine scent examination. We
instruct the trial court to make specific factual findings about the dog's
movements and behaviors both inside and outside the vehicle, and to address
whether the canine's positive alert was the fruit of an unlawful incursion. We
further instruct the trial court to make findings concerning the circumstances
that were deemed to be relevant in the federal dog sniff cases cited by the State
(e.g., whether the dog's entry was directed or in any way facilitated by its
handler or other officers, or was instead purely instinctive.) See also infra note
24. Although we do not retain jurisdiction, we instruct the trial court to make
its findings of fact and conclusions of law with respect to the use of the drug
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detection canine in sufficient detail to facilitate appellate review, should that
be required.
B.
We turn next to Thomas's contention that the trial court did not consider
and make findings concerning each prong of the independent source doctrine
as required under State v. Holland, 176 N.J. 344 (2001). In Holland, the Court
recognized an exception to the general rule long established in Wong Sun 23
that evidence found after a constitutional violation must be suppressed. 176
N.J. at 360–61. To invoke the independent source exception to the
exclusionary rule,
[f]irst, the State must demonstrate that probable cause
existed to conduct the challenged search without the
unlawfully obtained information. It must make that
showing by relying on factors wholly independent
from the knowledge, evidence, or other information
acquired as a result of the prior illegal search.
Second, the State must demonstrate in accordance
with an elevated standard of proof, namely, by clear
and convincing evidence, that the police would have
sought a warrant without the tainted knowledge or
evidence that they previously had acquired or viewed.
Third, regardless of the strength of their proofs under
the first and second prongs, prosecutors must
demonstrate by the same enhanced standard that the
23
Wong Sun v. United States, 371 U.S. 471, 484–88 (1963) (holding the
exclusionary rule extends to the direct and indirect products of unlawful police
conduct, establishing the "fruit of the poisonous tree" doctrine).
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initial impermissible search was not the product of
flagrant police misconduct.
[Ibid.]
In this instance, the trial court determined that after excluding the
canine's positive alert to CDS, the other information set forth in the warrant
application was sufficient to establish probable cause. We agree and affirm
that finding, which satisfies the first element of the Holland independent
source test. 24 The State acknowledges, however, the trial court did not
consider or make findings as to the two remaining elements of the three -part
test. In these circumstances, we are constrained to remand for the trial court to
complete the analytical process.
With respect to the second prong—whether the State would have sought
a warrant without the tainted evidence—we note the circumstances might
permit us to infer that the police would have applied for a warrant regardless
of the result of the canine scent examination. Holland, 176 N.J. at 361. This
was, after all, a directed stop following observation of an apparent drug
24
We note that on remand pursuant to subsection III(A) of this opinion, if the
trial court finds the dog alerted to the presence of CDS while still outside the
vehicle, that finding would bolster the conclusion that police had probable
cause to support the warrant independent of any positive canine alert made
after an unlawful entry into the vehicle.
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transaction involving a person who was a target of an active wiretap
investigation. See supra note 19.
The trial court aptly commented in its decision that "[i]mpoundment of
the vehicle seemed inevitable." That comment does not, however, constitute a
finding—applying the clear-and-convincing-evidence standard required in
Holland—that JCPD officers would have applied for a search warrant even if
the dog had not alerted to the presence of CDS. We again decline to exercise
original jurisdiction and leave for the trial court on remand to make findings
and conclusions regarding the second prong of the Holland independent source
test.
With respect to the third prong, the judge made no finding as to whether
the canine's positive alert was "the product of flagrant police misconduct." Id.
at 361. We note that although the State bears the burden of proving the
elements of the independent source doctrine by clear and convincing evidence,
"[f]lagrancy is a high bar, requiring active disregard of proper procedure, or
overt attempts to undermine constitutional protections." State v. Camey, 239
N.J. 282, 310 (2019) (citing State v. Smith, 212 N.J. 365, 398 (2012)). We
leave for the trial court to decide in the first instance whether the use of the
canine constitutes flagrant police misconduct.
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We note the State argues on appeal that using the canine to inspect the
interior of the vehicle cannot constitute a flagrant violation of defendant's
constitutional rights because the Pena-Flores exigency test was replaced in
Witt. We disagree with that argument for two distinct reasons.
First, it is by no means certain—indeed, doubtful—that police in this
case would have been allowed to enter the vehicle to conduct a canine scent
examination pursuant to Witt. The Court made clear in Witt that "if the
circumstances giving rise to probable cause were foreseeable and not
spontaneous, the warrant requirement applies." 223 N.J. at 448. In this
instance, the encounter was a directed stop made at the request of the State
Police based on an intercepted telephone conversation concerning CDS and the
State Police observation of a suspected drug transaction just before Thomas
entered the Caravan with the suspected contraband.
More fundamentally, we believe that under the independent source
exception, flagrancy is measured by examining the manner in which police
violated the law as it existed at the time of the police-citizen encounter. The
Holland flagrancy prong does not invite reviewing courts to discount or
minimize constitutional violations based on subsequent substantive revisions
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to the constitutional standards governing police conduct. 25 Any such argument
ignores the fact that in Witt, the Court carefully considered and expressly
eschewed the option to apply the less-restrictive spontaneity test retroactively.
By leaving the Pena-Flores exigency test intact as to automobile searches
conducted before Witt was decided, the Court clearly held that pre-Witt non-
exigent automobile searches violated those defendants' constitutional rights,
triggering the exclusionary rule. Id. at 449. Those constitutional violations
are no less serious than violations that occur after Witt and require the same
remedy. The point simply is that police must follow search and seizure rules
as they exist, not as they might become. Just as an unreasonable intrusion is
not validated or excused by what it fortuitously turns up, see Bruzzese, 94 N.J.
at 221, police disregard of the search and seizure rules then in force is not
made less flagrant by mere fortuity of subsequent changes to the law. Rather,
as we have already noted, flagrancy under the independent source doctrine is
measured at the moment the police misconduct occurs.
25
We note this commonsense principle cuts both ways. If police were to
violate a new search and seizure rule that was given retroactive effect, the
flagrancy of the misconduct for purposes of independent source analysis would
be measured as of the moment the search or seizure was conducted. Since
police could not be expected to anticipate a new more restrictive rule, their
violation of the new rule would not constitute flagrant misconduct provided
they were complying with the law as it was then understood.
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We leave to the trial court's discretion whether on remand to permit or
require additional testimony, convene oral argument, or require the parties to
submit additional materials with respect to the independent source exception.
We add that to facilitate appellate review, should that be needed, the trial court
shall make findings concerning the Holland independent source test even if it
determines on remand pursuant to subsection III(A) of this opinion that the use
of the canine was not unlawful.
IV.
We next address Virgil's contention the trial court abused its discretion
in denying her motion to withdraw her guilty plea to conspiracy. The
gravamen of her argument on appeal is that she did not expect to be ordered to
perform fifty hours of community service as a condition of probation, even
though the record shows she completed her community service before filing
the motion to withdraw her guilty plea. Because we affirm the denial of her
motion substantially for the reasons explained in the trial court's thorough and
cogent oral opinion, we need not re-address defendant's arguments at length.
We add the following comments.
The scope of our review is limited. We review a trial court's decision
on a motion to withdraw a guilty plea for an abuse of discretion. See State v.
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O'Donnell, 435 N.J. Super. 351, 372 (App. Div. 2014). The "'denial of
defendant's request to withdraw his [or her] guilty plea will be reversed on
appeal only if . . . the [trial] court's decision [was] clearly erroneous.'" State v.
Lipa, 219 N.J. 323, 332 (2014) (quoting State v. Simon, 161 N.J. 416, 444
(1999)).
In all plea withdrawal cases, whether evaluated under the "interests of
justice" standard of Rule 3:9-3(e) for pre-sentencing motions, or the "manifest
injustice" standard of Rule 3:21-1 for post-sentencing motions, "the burden
rests on the defendant, in the first instance, to present some plausible basis for
his [or her] request, and his [or her] good faith in asserting a defense on the
merits." State v. Slater, 198 N.J. 145, 156 (2009) (quoting State v. Smullen,
118 N.J. 408, 416 (1990)).
The Court in Slater set forth a four-part test to evaluate a defendant's
motion to withdraw a guilty plea:
trial judges are to consider and balance four factors in
evaluating motions to withdraw a guilty plea: (1)
whether the defendant has asserted a colorable claim
of innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the existence
of a plea bargain; and (4) whether withdrawal
would result in unfair prejudice to the State or unfair
advantage to the accused.
[Id. at 157–58 (citation omitted).]
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The Court added, "[a]nother important consideration is whether trial has
begun. Once a jury has been chosen and sworn, and a plea interrupts the trial,
withdrawal should only be permitted in the rarest of circumstances." Id. at
161.
The trial court in the matter before us carefully addressed the four
enumerated factors, and also considered that defendant's guilty plea interrupted
what would otherwise have been a lengthy racketeering trial. 26 We affirm the
trial court's thorough and detailed findings with respect to each of the four
Slater factors, which we need not recount in this opinion.
We add that Virgil's central argument is that the trial court violated her
reasonable expectations by imposing fifty hours of community service as a
condition of the three-year term of probation. We acknowledge that the
negotiated plea agreement did not expressly mention the possibility of
imposing community service as a condition of probation. Nor was the
prospect of community service expressly mentioned during the plea colloquy.
In State v. Saperstein, we held that when "[d]efendant accepted the possibility
26
We note the State's plea offer was contingent on the other trial co -
defendants, Thomas and Styles, also pleading guilty. In these circumstances,
the resource-conservation goal of the contingent plea arrangement would be
eviscerated if defendant were allowed to withdraw her guilty plea and the case
were to be remanded for her to stand trial alone. See Slater, 198 N.J. at 161.
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of a five[-]year custodial term[,] . . . imposition of 1,000 hours of community
service cannot be said to have exceeded defendant's reasonable expectations."
202 N.J. Super. 478, 482 (App. Div. 1985). We further explained,
We do not suggest that every obligation to be imposed
as a condition of probation must be forecast and
explained at the entry of the plea; many such
obligations can fairly be said to be reasonably
contemplated conditions of any probationary sentence.
The [imposition of 1,000 hours of] community service
discussed above is one example.
[Id. at 483.]
So too in this case, we do not hesitate to conclude that the imposition of
fifty hours of community service as a condition of a three-year period of
probation did not violate Virgil's reasonable expectations and affords no basis
upon which to allow her to withdraw her voluntary guilty plea.
V.
Finally, we address Virgil's contention the trial court erred in denying
her motion for a mistrial based on remarks made by the deputy attorney
general in his opening argument to the jury. Specifically, while explaining to
the jury why cutting or diluting agents are added to heroin, the deputy attorney
general remarked, "[h]eroin ingested in its raw form is lethal. It can kill in just
one dose." As we have already noted, the trial court found that comment was
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inappropriate but declined to declare a mistrial. The court instead issued a
curative instruction, making clear that there was no allegation in this case that
anyone had been harmed and that the State's allegations were limited only to
racketeering, conspiracy, and distribution of heroin. See State v. Smith, 224
N.J. 36, 47 (2016) (holding that whether an event at trial justifies a mistrial is a
decision 'entrusted to the sound discretion of the trial court.'") (quoting State v.
Harvey, 151 N.J. 117, 205 (1997)).
Virgil's contention on appeal lacks sufficient merit to warrant discussion
in this opinion. R. 2:11-3(e)(2). By pleading guilty, she waived all trial
issues. See State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1998)
("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."). Indeed,
Virgil acknowledges she did not preserve the mistrial issue for appellate
review when she pled guilty. In contrast, at the plea hearing, she expressly
reserved the right to challenge the trial court's wiretap ruling on appeal. We
doubt the trial court and the State would have allowed a conditional plea
preserving the right to appeal from the denial of the mistrial motion. See R.
3:9-3(f) (authorizing a conditional plea preserving the right to appeal non-
search-and-seizure issues only with the approval of the court and the consent
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of the prosecutor). We are satisfied, moreover, that our enforcement of the
general rule precluding appellate review of unpreserved issues does not
constitute an injustice in this case. Cf. State v. Gonzalez, 254 N.J. Super. 300,
304 (App. Div. 1992) (holding it would be unfair to require a defendant give
up a plea agreement in order to challenge the constitutionality of N.J.S.A.
2C:35-12).
VI.
To the extent we have not addressed them, any remaining arguments
raised by defendants lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2). As to all four defendants, we remand with respect to the
wiretap issues in accordance with the specific instructions set forth in
subsection II(C) of this opinion. If the trial court determines that the Wiretap
Act was violated, it shall enter an order granting defendants' suppression
motion with respect to all intercepted communications and evidence deri ved
from those interceptions, vacate the judgments of conviction, reinstate all
counts of the indictment that were dismissed pursuant to the plea agreements,
and conduct further proceedings consistent with that determination.
As to Thomas, we also remand for the court to supplement the record
and make additional findings of fact and conclusions of law with respect to the
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canine sniff issue as instructed in subsections III(A) and (B) of this opinion.
If the court determines that the search warrant for the Caravan was the fruit of
an unlawful canine sniff and cannot be sustained under the independent source
exception to the exclusionary rule, the court shall enter an order granting
Thomas's motion to suppress physical evidence, vacate his guilty plea, and
conduct further proceedings consistent with that determination.
We do not retain jurisdiction with respect to any of the remands ordered
in this opinion. In all other respects, we affirm the Law Division orders.
Affirmed in part; vacated and remanded in part.
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