NJ Appellate Court Ruling on K9 Field Reports in State v. Morgan
State of New Jersey v. Justin Morgan
Docket No. A-0499-23
Decided July 23, 2024
Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.
In a recent published opinion, the Appellate Court of New Jersey decided defendant’s appeal from the trial court’s September 1, 2023, order denying his motion to compel discovery of records relating to narcotics detention canine “Jocko.”
On January 30, 2022, just before midnight, an officer in a marked canine vehicle observed a white Ford F-150 leaving a convenience store with a poorly lit license plate in violation of N.J.S.A. 39:3-61(k). The officer then illuminated the plate with his headlights and ran the license plate. The plate inquiry revealed that the vehicle was registered to a “known narcotics dealer,” who “typically travels with . . . product in order to make roadside deliveries.” A motor vehicle stop was then conducted.
As the officer approached the suspect vehicle, the driver/registered owner of the vehicle became instantly confrontational. The officer then turned his attention to the front seat passenger/defendant and asked for his identification. The officer noted that the defendant appeared nervous. The officer stated that the defendant was shaking, perspiring, breathing heavily, and not making eye contact when answering questions.
The officer then instructed the occpants to exit the vehicle so that his canine, “Jocko,” can conduct a narcotics sniff of the vehicle. K9 Jocko then alerted to the presence of narcotics on the front passenger side door. After the K9 alerted positively, officers conducted a search of the vehicle and its occupants. Officers located contraband on defendant’s person, recovering a loaded revolver, hollow point rounds, a speed clip, and a small glass jar containing a “rocklike substance,” purported to be methamphetamine. A digital scale was also found in the glove compartment. Defendant was then indicted on multiple weapons and CDS related charges.
Pursuant to Rule 3:13-3, defendant sought discovery related to all training information and field reports associated with the canine team of the K9 Officer on scene and Jocko. The State produced the training information, but it objected to producing the field reports on relevance grounds.
In March 2023, defendant moved to compel production of the field reports, “specifically any and all: incident reports and canine activity reports involving Jocko, or alternatively a field log of Jocko’s sniffs done at scenes, the date and time of the deployments, whether they resulted in positive or negative indications, and what, if anything, was recovered.”
The defendant’s motion was supported by a report authored by an expert in canine olfaction, John C. Sagebiel, Ph.D. Dr. Sagebiel evaluated Jocko’s training records as well as the relevant reports from defendant’s arrest and opined that Jocko’s alert was false. Dr. Sagebiel cited facts in the record to support his opinion: no narcotics were found in the vehicle; Jocko had a history of giving alerts in the field that did not lead to the discovery of narcotics; Jocko did not give a consistent positive indication alert; and Jocko’s training indicates he had a high odor threshold, making it unlikely the alert on the car was due to residual odor. The State opposed the motion and cross-moved to bar Dr. Sagebiel’s testimony and his report.
The trial court denied defendants motion, articulating in an oral decision that the court relied on the United States Supreme Court’s holding in Florida v. Harris, 568 U.S. 237 (2013), reasoning that because the State provided the canine’s training and certification records, “it would be error to require the production of records regarding performance in the field.” The court also denied the State’s motion to bar defendant’s expert opinion evidence as moot, finding “the motion to compel raise[d] legal issues, rather than factual issues.” Defendant subsequently appealed.
On appeal, defendant contended that defense is entitled to the discovery requested, which the State is required to disclose under our court rules, and which is essential to determine the reliability of the dogs perceived alert.
The issue before the Appellate Division is a question of first impression regarding when the State may be compelled to provide field and health reports of narcotics detection canines in accordance with the Supreme Court’s holding in Florida v. Harris, 568 U.S. 237 (2013). Harris held that states cannot be required “to provide an exhaustive set of records, including the dog’s performance in the field, to establish the dog’s reliability,” as such a rule “is inconsistent with the ‘flexible common-sense standard’ of probable cause.” Ibid. (quoting Gates, 462 U.S. at 239). The Appellate Court noted that Harris informs us that field records are not required for the State to meet its burden of establishing probable cause for a warrantless search. However, Harris also tells us that field records are not completely barred from consideration. Where a defendant challenges a dog’s training and certification, field reports may be subject to discovery under Rule 3:13-3(b).
The Appellate Division ultimately concluded that field and health reports of narcotics detection canines are not per se irrelevant to reliability and probable cause determinations and therefore, the court should have first heard the State’s motion challenging the expert before denying defendant’s motion for discovery. The court stated that because Dr. Sagebiel’s expert report challenged both Jocko’s training and the officer’s actions as the dog’s handler during the sniff, K9 Jocko’s field and health records could be relevant to the reliability of his alert during the car stop if defendant is permitted to avail himself of that expert opinion. The court indicated that Jocko’s reliability goes directly to the K9 Officer’s probable cause determination for the warrantless search, which is relevant to any motion defendant elects to file as the litigation proceeds. The Appellate Court reversed and remanded the matter for the trial court to consider the State’s motion to bar defendant’s expert on the merits using the Daubert standard adopted by our Supreme Court for criminal cases in State v. Olenowski, 253 N.J. 133, 151 (2023). If the expert’s opinion is deemed admissible, the State must produce the disputed field and health records pursuant to Rule 3:13-3(b) to ensure a fair trial.
At Hark & Hark, we are experienced attorneys who represent clients in Superior Court for issues like the previously discussed case pertaining to motions to compel discovery. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.
