NEWS FLASH, NJ Supreme Court Rules: Motor Vehicle stop extended for 40 minutes in order to wait for Drug Sniffing dog deemed acceptable in New Jersey

State v. Nelson, New Jersey Supreme Court Decided May 8, 2019 

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Commentary:  The court rules that a 40 minute wait for a drug sniffing dog to arrive based on relatively flimsy ‘independent reasonable and articulable suspicion” of the detective who conducted a motor vehicle stop was not constitutionally offensive given the facts of this motor vehicle stop.  One again an officer’s testimony of ‘failing to maintain lane’ and ‘driving too closely’ (probably two traffic offenses everyone violates on the New Jersey Turnpike) were used as an absolutely minimally legal basis to stop a motor vehicle suspected of having marijuana in the vehicle.  Then nervousness and sweating were used as ‘reasonable and articulable suspicion’ of ongoing crimes!

In this appeal, the Court considers whether the wait for a canine unit’s arrival prolonged defendant’s traffic stop, and if so, whether the delay was justified by independent reasonable and articulable suspicion that defendant possessed drugs.

New Jersey State Police (NJSP) Detective Jason Kazan learned that the Bureau of Alcohol, Tobacco, and Firearms (ATF) had passed along a tip that a silver Infinity FX35 with a particular plate driven by an African-American male would be traveling on the Turnpike and transporting a large quantity of marijuana. Thirteen minutes after receiving the tip, the NJSP spotted the car and made a traffic stop, citing the driver for failing to maintain his lane and following another vehicle too closely, both Title 39 violations.

Relevant facts:

1. Detective Kazan noticed an overwhelming smell of air freshener emanating from defendant Dwight Nelson’s vehicle
2. Detective saw “Febreze” air fresheners located in several areas of the car.
3. Based on his training and experience, Detective Kazan testified that air fresheners can be used as a masking agent for drugs.
4. Nelson was then asked to step out of his car, where he was administered his Miranda warnings.
5. Once Detective Kazan began speaking with Nelson, he noticed that Nelson was sweating profusely, appeared visibly nervous, and was shaking and trembling.
6. Detective Kazan also testified that Nelson’s story about where he was going changed during their conversation.
7. At first, Nelson told the detective he had been in the Bronx to visit his aunt and was now on his way to Philadelphia to visit his cousin,
8. but later Nelson stated he had been visiting his cousin in New York and was heading to Philadelphia to visit a friend.
9. Detective Kazan noticed that Nelson’s car was devoid of any personal belongings, aside from two very large bundles in the cargo hold of the car.
10. Detective Kazan asked Nelson what the bags contained, and Nelson stated they contained shoes from a store he was closing.
11. Nelson admitted that he had been previously arrested for possession of marijuana.

Based on his belief that Nelson’s car contained narcotics, Detective Kazan asked Nelson for permission to search the vehicle, but Nelson denied the request. Detective Kazan testified that he believed there was “reasonable articulable suspicion [that] there was crime afoot” and called for a canine unit to be brought to the scene at 7:21 p.m. The canine arrived at 7:58 p.m. and conducted a sniff of Nelson’s vehicle. The canine alerted the officers to the presence of narcotics in the rear hatch of the vehicle. Detective Kazan then placed Nelson under arrest and called for a tow truck. At 11:15 p.m., Detective Kazan secured a search warrant and conducted a search of Nelson’s vehicle, which led to the discovery of eighty pounds of marijuana.

Nelson moved to suppress the evidence found in his vehicle. The motion court recognized that “Detective Kazan extended the length of time of the initial motor vehicle stop and expanded the scope of the search beyond the limits of the motor vehicle stop,” but determined that Detective Kazan had reasonable and articulable suspicion to do so. The court denied Nelson’s motion, and Nelson pled guilty to possession of marijuana with intent to distribute.

On appeal, the Appellate Division affirmed but stated that “the use of the canine unit did not prolong the stop more than reasonably required to complete [the] Title 39 enforcement mission.”

The Court granted Nelson’s petition for certification. 233 N.J. 211 (2018).

Ruling: Nelson’s traffic stop was prolonged as he waited for the arrival of the canine unit, but the officers had developed independant reasonable and articulable suspicion necessary to prolong the stop under State v. Dunbar, 229 N.J. 521, 540 (2017). The Court therefore affirms as modified the Appellate Division’s determination that the evidence seized during the car’s subsequent search should not be suppressed.

1. The Fourth Amendment of the Federal Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee the right to be free from unreasonable searches and seizures. “A lawful roadside stop by a police officer constitutes a seizure under both the Federal and New Jersey Constitutions.” Dunbar, 229 N.J. at 532. During a lawful traffic stop, a police officer is permitted to “inquire into matters unrelated to the justification for the traffic stop.” Id. at 533. If, during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden the inquiry and satisfy those suspicions.
2. The Court held in Dunbar that “an officer does not need reasonable suspicion independent from the justification for a traffic stop in order to conduct a canine sniff.” 229 N.J. at 540. However, “an officer may not conduct a canine sniff in a manner that prolongs a traffic stop beyond the time required to complete the stop’s mission, unless he possesses reasonable and articulable suspicion to do so.” Ibid. “In other words, in the absence of such suspicion, an officer may not add time to the stop.”
3. In this case, it is established that the initial traffic stop was a lawful response to the Title 39 violations Detective Kazan observed. Two determinations must therefore be made: whether the wait for the canine unit’s arrival prolonged Nelson’s traffic stop, and, if so, whether the delay was justified by independent reasonable and articulable suspicion that Nelson possessed drugs at that time. Regarding the first determination, “[t]he critical question . . . is . . . whether conducting the sniff . . . add[ed] time to . . . the stop.” Id. at 536. Here, after Nelson denied the detectives consent to search his vehicle, the detectives then “added time” to Nelson’s traffic stop when they required him to wait thirty-seven minutes for the arrival of the canine unit.
4. The Court therefore considers whether a reasonable and articulable suspicion beyond that which justified the stop supported the canine sniff. As Detective Kazan testified, he believed there was “reasonable articulable suspicion [that] there was crime afoot” based on the following factors:

(1) the initial tip from ATF;

(2) the moving violations observed;

(3) Nelson’s nervous behavior;

(4) Nelson’s conflicting trip itinerary;

(5) the lack of any personal belongings in the vehicle;

(6) the large bags in the cargo hold;

(7) Nelson’s admission of prior narcotics arrests; and

(8) the overwhelming smell of air freshener. The detective’s observations, taking into account his training and experience, suggested criminal activity and provided the reasonable suspicion necessary to prolong Nelson’s stop to await the arrival of the canine unit.