NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4731-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES J. KERNS, a/k/a JAMES J. KERNS II, JAMES J. KERNS III, JAMES J. KERNS 3RD, JAMES JOHNLITY KERNS, and MILLS,
Defendant-Appellant. _____________________________
Argued December 9, 2019 – Decided December 30, 2020
Before Judges Messano, Ostrer and Susswein (Judge Ostrer concurring).
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment Nos. 17-01-0050 and 17-01-0051.
Emma R. Moore, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Emma R. Moore, of counsel and on the briefs). Adam D. Klein, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Adam D. Klein, of counsel and on the brief).
PER CURIAM
In this consolidated appeal, James J. Kerns contends the trial court should
have granted his motions to suppress drugs that police seized from his person
on two separate occasions. After evidentiary hearings, the court denied the
motions, and Kerns pleaded guilty to two counts of third-degree possession of a
controlled dangerous substance (CDS), one count from each incident. The court
imposed concurrent terms of forty-two months.
In the first incident, Kerns was a passenger in a car that police stopped for
motor vehicle violations. Kerns contends police unlawfully asked him to
identify himself. Kerns provided false names to police, who arrested him for
hindering. Incident to his arrest, police seized heroin from his person.1 Kerns
contends the police's unlawful inquiry tainted the seizure that followed. He
argues:
BECAUSE MR. KERNS WAS MERELY A PASSENGER IN A CAR STOPPED FOR A TRAFFIC VIOLATION, TROOPER MURRAY DID NOT HAVE AUTHORITY TO ASK FOR HIS IDENTIFICATION.
1 This incident led to Indictment No. 17-01-0050, charging one count of third- degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). A-4731-17T1 2 BECAUSE THIS CREDENTIALS CHECK VIOLATED ARTICLE 1 PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION, THE EVIDENCE SUBSEQUENTLY SEIZED MUST BE SUPPRESSED.
After Kerns's release on bail, a cooperating witness engaged in two
controlled buys from him. Then, tipped off that Kerns was about to travel to
Newark to buy drugs, police surveilled Kerns make the round-trip from
Phillipsburg. On his return, police arrested Kerns and, incident to the arrest,
seized more heroin and MDMA (which is short for
methylenedioxymethamphetamine, and popularly known as "Ecstasy").2 Kerns
contends those drugs should have been suppressed because the controlled buys
did not create probable cause for the arrest; and even if they did initially, the
probable cause had become stale. He argues:
BECAUSE THE STATE DID NOT ESTABLISH THAT THE OFFICERS HAD PROBABLE CAUSE TO ARREST MR. KERNS ON SEPTEMBER 22, 2016, THE EVIDENCE OBTAINED IN THE
2 This incident led to Indictment No. 17-01-0051, consisting of eleven counts charging offenses related to the two controlled buys as well as the seizure after Kerns's round-trip to Newark. The indictment included four counts of third - degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); four counts of third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1), -5(b)(3); two counts of third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1), -5(b)(3); and one count of second-degree distribution of CDS within 500 feet of public housing, N.J.S.A. 2C:35-7.1(a). A-4731-17T1 3 SEARCH INCIDENT TO THAT ARREST MUST BE SUPPRESSED.
A. The Police's Limited Knowledge of the Controlled Buys.
B. The Gap Between the Controlled Buys and Eventual Arrest.
Having reviewed Kerns's arguments in light of the record and applicable
principles of law, we reverse the first order and affirm the second. Only the
motion regarding the first indictment merits extended discussion.
I.
A.
We defer to the trial court's limited factual findings regarding the first
incident, because they were supported by substantial credible evidence in the
record — the testimony of New Jersey State Trooper Robert Murray, the sole
witness at the suppression hearing, and a motor vehicle recording of the traffic
stop. See State v. Elders, 192 N.J. 224, 243-44 (2007) (describing standard of
review of suppression orders). However, relying on the undisputed video
record, we are constrained to make additional findings regarding facts that the
trial court did not address. Cf. State v. S.S., 229 N.J. 360, 380 (2017) (stating
appellate court may not substitute its findings for those the trial court mad e
based on video recording).
A-4731-17T1 4 The trial court found that Trooper Murray and his partner, Trooper J.
Almeida, observed a vehicle with Pennsylvania tags cross the free bridge into
Phillipsburg shortly after midnight. One headlight was out, and the car was
going 25 mph in a 15-mph zone. During the traffic stop, a trooper asked Kerns,
the front seat passenger, for his identification. The court found: "When asked
for his identification, defendant stated that he did not have his driver's li cense
on his person and proceeded to provide Trooper Murray with several false names
and a false DOB." The troopers checked those names in the computer system
and "[n]o results were produced." Trooper Murray then ordered Kerns to exit
the vehicle and arrested him for hindering an investigation, N.J.S.A. 2C:29-3(b).
An initial search of his person uncovered nothing. The trooper transported
Kerns to the State Police station. When he removed Kerns from his police
vehicle, Kerns held in his hands seventy-eight wax folds of suspected heroin.
The court held, as a matter of law, that Kerns was free not to answer the
trooper's question. In the court's view, Kerns himself prompted further
questioning and his ultimate arrest by providing false names. Citing State v.
Sirianni, 347 N.J. Super. 382, 387 (App. Div. 2002), the court evidently
concluded that the troopers' encounter with Kerns was a field inquiry;
consequently, the police did not need reasonable grounds or suspicion, and
A-4731-17T1 5 Kerns was free not to answer. Id. at 388-89. On appeal, the State takes that
same position, as its first line of defense of the court's order.
We owe no deference to the trial court's legal conclusion, State v. Watts,
223 N.J. 503, 516 (2015), which mischaracterized the trooper's encounter with
Kerns. In Sirianni, a police officer approached a person in a parked car and
asked for identification. The person was not detained; he was free not to answer;
and the police inquiry did not convert what was a field inquiry into a detention.
Sirianni, 347 N.J. Super. at 391. By contrast, Kerns and the driver were already
seized, because "[m]otor vehicle stops are seizures for Fourth Amendment
purposes," State v. Atwood, 232 N.J. 433, 444 (2018), and during a traffic stop,
"the passenger, like the driver" is seized, State v. Sloane, 193 N.J. 423, 426
(2008). Kerns was not free to leave. As the Court observed in State v. Rosario,
229 N.J. 263, 273 (2017), "[i]t defies typical human experience to believe that
one who is ordered to produce identification [when the officer has boxed in a
person's vehicle] would feel free to leave."
The video makes clear that Kerns was commanded to produce
identification documents and, because he was unable to do that, to state his name
and date of birth. When an officer asks a person "if he ha[s] 'any identification
on [him],'" the United States Supreme Court understood that "as a request to
A-4731-17T1 6 produce a driver's license or some other form of written identification." Hiibel
v. Sixth Judicial Dist. Ct. of Nevada, Humboldt Cty., 542 U.S. 177, 181 (2004)
(second alteration in original). Although the trial court found that police "asked"
Kerns for identification, Kerns was not free to refuse, just as he was not free to
leave. That Kerns was seized is one reason we conclude, as a legal matter, that
an objectively reasonable person under the circumstances would not feel fre e to
refuse. See State v. Gibson, 218 N.J. 277, 291-92 (2014) (stating that a field
inquiry involves questioning that is not "harassing, overbearing, or accusatory
in nature," and the person is free to refuse and terminate the encounter, but an
investigative stop is one where a reasonable person would not feel free to leave).
But, the trooper left nothing to doubt. The video recorded Trooper Murray ask
Kerns if he had identification. Kerns answered inaudibly, Trooper Murray asked
for clarification, and then commanded, "Give the trooper [referring to Trooper
Almeida] your name." 3
The video recording reflects that in the beginning of the stop, Trooper
Murray informed the driver that he was pulled over because his headlight was
3 We may not substitute our assessment of video recordings for the trial court's, see S.S., 229 N.J. at 380, and we do not do so here. The trial judge did not make findings regarding this exchange or others we address, or expressly refer to them. A-4731-17T1 7 not functioning, and he went 25 mph in a 15-mph zone. The trooper asked the
driver for his license and registration. He produced the first, but could not locate
the second. Trooper Murray assured the driver that he could confirm the driver's
ownership by running the plates; and cordially stated that the driver would likely
locate the registration after the police left. 4
While Trooper Murray engaged with the driver, Trooper Almeida
continued to question Kerns to ascertain his identity. Both troopers returned to
the patrol car to look up the name Kerns gave, and finding nothing, Trooper
Murray walked back to Kerns to ask for clarification. The trooper returned to
the patrol car a second time, and again could find no match. The troopers walked
back to Kerns, who clarified the spelling of his name, and Trooper Murray asked
why Kerns had not done so earlier. The troopers returned to the patrol car a
third time. By that point, nearly fifteen minutes had elapsed since the stop
began. The first video ends with both troopers in their vehicle.5 By that point,
4 In its written opinion, the trial court recited that the State asserted, and defendant denied, that the driver "was unable to provide proof of ownership." The court did not expressly decide that dispute, and the video recording does not clearly resolve it. 5 The dvd included in the appendix on appeal includes a second video recording, which apparently picks up after the first. However, the State expressly introduced only the first at the hearing. A-4731-17T1 8 no one wrote out traffic summonses for the driver. Trooper Murray testified that
after a fourth encounter with Kerns regarding his identity, he arrested Kerns for
hindering.
B.
The question is: were police entitled to require Kerns to identify himself
during the traffic stop for minor vehicle violations, and then continue to detain
him and the driver — after the police were done investigating the motor vehicle
violations that precipitated the stop — while they tried to confirm that Kerns
was who he said he was. To answer that question, we must review fundamental
principles governing the permissible scope of traffic stops.
"'[T]he ultimate touchstone of the Fourth Amendment is reasonableness.'"
State v. Terry, 232 N.J. 218, 231 (2018) (internal quotation marks omitted)
(quoting Riley v. California, 573 U.S. 373, 381-82 (2014)). Based on observed
motor vehicle violations, the police may stop a vehicle, detaining the passenger
as well as the driver. Sloane, 193 N.J. at 432. But, in assessing the
reasonableness of a police intrusion, a court must consider not only "whether
the officer's action was justified at its inception," but also "whether it was
reasonably related in scope to the circumstances which justified the interf erence
in the first place." Terry v. Ohio, 392 U.S. 1, 20 (1968). Put another way, a
A-4731-17T1 9 court must determine whether a stop, valid in its inception, "was sufficiently
limited in scope and duration to remain within the bounds authorized . . . ." State
v. Dickey, 152 N.J. 468, 471-72 (1998).
The New Jersey Supreme Court has approved a variety of police intrusions
or actions that fall within the scope of a traffic stop, and therefore require no
additional justification beyond the justification for the stop itself. Police may
check the driver's license, determine whether there are warrants for the driver's
arrest, and inspect the registration and proof of insurance. State v. Dunbar, 229
N.J. 521, 533 (2017) (citing Rodriguez v. United States, 575 U.S. 348, 355
(2015)). These are "'ordinary inquiries incident to [the traffic] stop.'"
Rodriguez, 575 U.S. at 355 (quoting Illinois v. Caballes, 543 U.S. 405, 408
(2005)); Dunbar, 229 N.J. at 533. "These checks serve the same objective as
enforcement of the traffic code: ensuring that vehicles on the road are operated
safely and responsibly." Rodriguez, 575 U.S. at 350.
Within the scope of a traffic stop, police may also ask for identification
from a passenger who proposes to drive a vehicle after the driver's arrest, to
assure he is a licensed driver. Sloane, 193 N.J. at 432. Police may also check
the National Crime Information Center database for records pertaining to that
passenger, "when there is a basis for police to focus on the passenger," the
A-4731-17T1 10 inquiry does not "unreasonably prolong the stop," and accessing the NCIC
database was within the scope of the traffic stop. Id. at 426, 438-39.6
Actions to assure an officer's safety during the traffic stop may also fall
within the scope of the original traffic-related stop. "Traffic stops are 'especially
fraught with danger to police officers.'" Rodriguez, 575 U.S. at 356 (quoting
Arizona v. Johnson, 555 U.S. 323, 330 (2009)). Thus, an officer may require a
driver to alight a vehicle without any additional showing of suspicion of
wrongdoing, or threat to the officer's safety. Pennsylvania v. Mimms, 434 U.S.
106, 110-11 (1977); see also State v. Smith, 134 N.J. 599, 618 (1994). As a
matter of federal constitutional law, that rule also applies to passengers.
Maryland v. Wilson, 519 U.S. 408, 415 (1997).
However, ordering a passenger to exit a vehicle must meet an additional
test under our State Constitution. Smith, 134 N.J. at 618. Although the safety
interest "remains the same whether the driver or the passenger is involved,"
requiring a passenger to exit the vehicle imposes a "greater intrusion on the
6 As we discuss below, the United States Supreme Court made clear in Rodriguez that the Fourth Amendment does not tolerate even a de minimis prolongation of a stop for police to engage in activity that neither falls within the traffic-related mission of the stop nor protects the safety of officers while they pursue that mission, and is not independently supported by reasonable and articulable suspicion of wrongdoing. 575 U.S. at 350, 354-57. A-4731-17T1 11 passenger's liberty." Id. at 615. That is because the passenger apparently has
done nothing wrong, just happens to be associated with the errant driver, and
may have a "legitimate expectation that no further inconvenience will be
occasioned by any intrusions beyond the delay caused by the lawful stop." Ibid.
To require a passenger to exit, "an officer must be able to point to specific and
articulable facts that would warrant heightened caution to justify ordering the
occupants to step out of a vehicle detained for a traffic violation." Id. at 618.
Police inquiries or intrusions that go beyond the officer's "traffic mission"
or the officer's safety while pursuing that mission — that are instead focused on
general crime detection — must meet a different standard. They must not
prolong the time it takes to effectuate the stop's mission, or they must be
independently supported by reasonable and articulable suspicion of wrongdoing.
If pursuit of traffic or safety-related inquiries or intrusions give rise to
suspicions of wrongdoing unrelated to the traffic offense, "an officer may
broaden [the] inquiry and satisfy those suspicions." Dickey, 152 N.J. at 479-80
(alteration in original) (quoting United States v. Johnson, 58 F.3d 356, 357-58
(8th Cir. 1995)). The additional inquiries are grounded not in the probable cause
of the initial traffic violation; rather, they are grounded in the new suspicions
A-4731-17T1 12 aroused by, or while conducting, the lawful traffic-related or safety-related
inquiries. Id. at 480.
Absent such new suspicions, police intrusions unrelated to the traffic-
mission are temporally circumscribed. "[T]he Fourth Amendment tolerate[s]
certain unrelated investigations that d[o] not lengthen the roadside detention."
Rodriguez, 575 U.S. at 354. "A seizure justified only by a police-observed
traffic violation . . . 'become[s] unlawful if it is prolonged beyond the time
reasonably required to complete th[e] mission' of issuing a ticket for the
violation." Id. at 350 (quoting Caballes, 543 U.S. at 407). "An officer . . . may
conduct certain unrelated checks during an otherwise lawful traffic stop. But
. . . he may not do so in a way that prolongs the stop, absent the reasonable
suspicion ordinarily demanded to justify detaining an individual." Id. at 355.
For example, a dog sniff "is a measure aimed at 'detect[ing] evidence of
ordinary criminal wrongdoing'" and "is not an ordinary incident of a traffic
stop." Id. at 355-56 (alteration in original) (quoting Indianapolis v. Edmond,
531 U.S. 32, 40-41 (2000)). Police may not proceed along such an investigatory
avenue if "conducting the sniff prolongs — i.e. adds time to — the stop." Id. at
357 (internal quotation marks omitted).
A-4731-17T1 13 A stop is prolonged if it is extended "'beyond the time reasonably required
to complete th[e] [traffic] mission.'" Id. at 354-55 (first alteration in original)
(quoting Caballes, 543 U.S. at 407). The chronology or sequence of police
actions is not determinative. Police may not justify non-traffic-related inquiries
by waiting to write a traffic ticket last. "The critical question . . . is not whether
the dog sniff [or other general crime-detection inquiry] occurs before or after
the officer issues a ticket." Id. at 357. The issue is whether the stop is prolonged.
Ibid. In contrast to safety-related intrusions, there is no de minimis exception
for an "endeavor to detect crime in general or drug trafficking in particular." Id.
at 356-57; see also United States v. Clark, 902 F.3d 404, 410 (3d Cir. 2018).
Although Rodriguez involved a traffic stop that may have been prolonged
by a dog sniff, the Court relied in part on its decision in Johnson. Rodriguez,
575 U.S. at 354-55 (citing Johnson, 555 U.S. at 327-28). In Johnson, police
questioned a passenger about "matters unrelated to the justification for the traffic
stop." Johnson, 555 U.S. at 333. The Court held that "[a]n officer's inquiries
into matters unrelated to the justification for the traffic stop . . . do not convert
the encounter into something other than a lawful seizure, so long as thos e
inquiries do not measurably extend the duration of the stop." Ibid.
A-4731-17T1 14 Courts have since applied Rodriguez to stops prolonged by off-mission
questioning of a passenger's identity, like that at issue here. In United States v.
Landeros, 913 F.3d 862 (9th Cir. 2019), and in Clark, 902 F.3d at 406, the courts
of appeal held that police unlawfully prolonged a traffic stop to inquire about a
passenger's identity.
In Landeros, a police officer with authority to enforce Arizona and tribal
law pulled over a speeding car. 913 F.3d at 864. Upon request, the driver
provided identification. Ibid. The officer then asked for identification from two
women in the back seat. Ibid. The officer had a reasonable suspicion they were
violating a non-traffic law, because they appeared to be minors, and they were
out past a tribal curfew. Id. at 864, 867.
However, no reasonable and articulable suspicion of a non-traffic offense
supported the officer's command that Landeros, the front-seat passenger,
produce his identification. Id. at 868. Landeros refused repeated commands to
identify himself, and then refused repeated commands that he exit the car for
being non-compliant. Ibid. Several minutes passed before Landeros finally
exited the car, revealing two open beer bottles, pocket knives, and a machete on
the floor. Ibid. Police arrested him for failing to provide his true name and
refusing to comply with the police officers' direction. Ibid. Police also charged
A-4731-17T1 15 him with possessing an open container. Incident to arrest, police seized another
knife and some bullets from his pockets. Ibid. Landeros was indicted for
possession of ammunition by a convicted felon. Ibid.
The court reversed the trial court's order denying Landeros's suppression
motion. Two holdings of the court pertain to the case before us. First, the court
held that demanding the passenger's identification fell outside the traffic-related
mission that gave rise to the stop and was unrelated to protecting officer safety.
Id. at 868. Regarding enforcement of motor vehicle laws, the court said, "A
demand for a passenger's identification is not part of the mission of a traffic
stop. . . . The identity of a passenger . . . will ordinarily have no relation to a
driver's safe operation of a vehicle." Ibid. Regarding officer safety, the court
stated, "[K]nowing Landeros's name would not have made the officers any
safer." Ibid. Rather, the inquiries extended the stop, and prolonged the officers'
exposure to him, which "was, if anything, 'inversely related to officer safety.'"
Ibid. (quoting United States v. Evans, 786 F.3d 779, 787 (9th Cir. 2015)).
Second, because the identification demands fell outside the scope of the
traffic stop, the court held that they could not prolong the stop absent
independent reasonable suspicion. Ibid. The court found that the inquiries
prolonged the stop beyond what was reasonably necessary to fulfill the traffic-
A-4731-17T1 16 related mission. Ibid. And, the court rejected the government's argument "that
Landeros's refusal to identify himself 'provided reasonable suspicion of the
additional offenses of failure to provide identification and failure to comply with
law enforcement orders,'" in violation of Arizona law. Ibid. Recognizing the
circular nature of the government's contention, the court held that Landeros
could not have violated the Arizona law because "the officers lacked reasonable
suspicion[] at the time they initially insisted he identify himself, that Landeros
had committed, was committing, or was about to commit any crimes . . . ." Id.
at 869.
In Clark, police stopped a van for driving without headlights and other
motor vehicle violations. 902 F.3d at 406. The driver produced a license and
proof of insurance, but could not locate the registration of the vehicle, which he
said belonged to his mother. Ibid. A computerized check confirmed the license
was valid, and the car was registered to a woman with the driver's surname, at
the driver's address. Ibid. The driver offered to call his mother, but the officer
ignored the offer. Ibid. Instead, after ascertaining the driver had a criminal
record for drug offenses, but no outstanding warrants, police returned to the
vehicle and inquired about the driver's criminal record. Id. at 406-07. Police
asked him to exit the car, and continued questioning him. Id. at 407.
A-4731-17T1 17 The officer then asked the driver about the passenger, the defendant Clark,
for his name, how he knew him, and how they came to travel together. Ibid.
The officer then posed the same questions to Clark, and his answers conflicted
with the driver's. Id. at 407-08. Police then claimed they detected the smell of
marijuana on Clark's side of the car. After asking Clark to alight from the car,
a subsequent search of him uncovered a gun and a marijuana cigarette. Id. at
408. The driver was permitted to leave once issued a summons for his motor
vehicle violations, and Clark was arrested and later indicted for possession of a
weapon by a convicted felon. Ibid.
The district court suppressed the gun and the Third Circuit affirmed, after
concluding that the police's inquiries of the driver and Clark prolonged the stop
beyond its traffic-related mission. Ibid. The court held that the officer could
not reasonably question the driver's authority after "he confirmed through the
computerized check that [the driver] was authorized to drive the vehicle, and
when there was no fact calling that authority into doubt." Id. at 411. The court
noted that the officer's inquiries were not really intended to acquire criminal
history information, which the officer already had obtained. Id. at 411 n.6. The
officer's "inquiry into [the driver's] criminal history was thus not tied to the
traffic stop's mission, and, at the point, 'tasks tied to the traffic infraction . . .
A-4731-17T1 18 reasonably should have been . . . completed.'" Id. at 411 (alteration in original)
(quoting Rodriguez, 575 U.S. at 354).
C.
Turning to the case before us, we conclude, as did the courts in Landeros
and Clark, that the police inquiries of Kerns prolonged the stop; were unrelated
to the traffic-related mission of the initial stop; and were not independently
supported by reasonable and articulable suspicion of other wrongdoing.
It is evident from the video recording that, by questioning Kerns, the
troopers prolonged the stop beyond the time reasonably required to complete the
traffic-related mission. As noted, the point is not what came first — the traffic-
related investigation of the driver, or the non-traffic related inquiries of Kerns,
the passenger. The point is that the inquiries of Kerns extended the stop beyond
the time it would have ended, had the troopers limited themselves to the traffic-
related mission, as the Fourth Amendment required them to do.
As in Landeros, we discern no evidence that questioning Kerns furthered
the investigation of the suspected traffic violations. Police stopped Kerns's
driver for speeding and operating a vehicle with a non-functioning headlight.
After the stop, they discovered the driver could not locate the registration.
However, the troopers did not question Kerns about the driver's ownership, or
A-4731-17T1 19 authority to drive the vehicle. And the trooper assured the driver that his
authority to possess the vehicle could be confirmed by running a computer
check. Simply put, the troopers' persistent inquiries of Kerns did not fall within
the scope of the traffic-related mission; rather, they were "aimed at 'detect[ing]
evidence of ordinary criminal wrongdoing.'" Rodriguez, 575 U.S. at 355
(alteration in original) (quoting Edmond, 531 U.S. at 40-41).
However, the police lacked reasonable and articulable suspicion of any
such wrongdoing. The State contends Kerns acted nervously, fidgeted with his
cell phone, and avoided eye contact before the trooper asked Kerns if he had
identification. Considering those behaviors, the risks to officers who make
traffic stops, and the degree of police intrusion, the State argues it was
reasonable for the trooper to ask Kerns for his identification, and then his name
and date of birth.
We are unconvinced. We assume for argument's sake that Kerns acted
nervously, although the trial court made no such finding, and we are in no
position to make that finding ourselves. 7 Nonetheless, "nervousness is not
sufficient grounds for the reasonable and articulable suspicion necessary to
7 The trial court noted in its written opinion that defendant denied that he "engaged in any conduct that would justify questioning, a request for identification or investigation of any kind." A-4731-17T1 20 extend the scope of a detention beyond the reason for the original stop." State
v. Carty, 170 N.J. 632, 648 (2002). 8
The State adds to the mix the "late hour" and the driver's failure to produce
the registration. But, neither fact converts Kerns's presumed nervousness into
reasonable and articulable suspicion of wrongdoing. Although it was a few
minutes past midnight, the stop occurred after the car had just left an interstate
bridge, where travelers are common, not a quiet residential neighborhood, where
they are not. Compare Vasquez v. Lewis, 834 F.3d 1132, 1138 (10th Cir. 2016)
(no reasonable suspicion when defendant was traveling late at night, on a major
interstate, and appeared nervous to the officers), with State v. Martinez, 260 N.J.
Super. 75, 78 (App. Div. 1992) (stating, "[w]e take notice . . . that operation of
a motor vehicle in the middle of the night on a residential street at a snail's pace
between five and ten m.p.h. is indeed 'abnormal'").
Also, under the circumstances, the driver's failure to produce registration
was no reason to suspect his passenger of criminal activity. Notably, the trooper
assured the driver, who had produced his driver's license and proof of insurance
and was searching for the registration, that the trooper could easily confirm his
8 Carty was modified, solely on the issue of its retroactivity, in State v. Carty, 174 N.J. 351 (2002). A-4731-17T1 21 ownership by running his tag number through his computer system. Evidently,
the driver's failure to produce a registration was not a major concern, since the
trooper ultimately decided not to give the driver a ticket for that infraction, or
for his speeding or blown headlight, both of which provided troopers the grounds
to stop the car in the first place. See Hornberger v. Am. Broad. Co., 351 N.J.
Super. 577, 609 (App. Div. 2002) (stating that police's failure to issue a
summons for erratic driving, or near collision, or even mention it to the driver
"undermine[d] the importance of th[e] allegation"); cf. State v. Chisum, 236 N.J.
530, 548-49 (2019) (stating that once police decided not to issue a summons for
a noise violation at a motel, their "decision to continue their investigation to
ascertain the identities of every occupant of the [motel] room was misplaced").
In sum, the troopers' persistent efforts to ascertain Kerns's identity
violated Kerns's right to be free from an unreasonable search or seizure, because
it prolonged the stop without furthering its traffic-related mission, and was not
independently supported by reasonable and articulable suspicion of wrongdoing.
D.
The State argues that even if the troopers' inquiries violated Kerns's rights,
the drug seizure at the police station was so attenuated from the constitutional
violation that the drugs should not be suppressed. "'[T]he exclusionary rule will
A-4731-17T1 22 not apply when the connection between the unconstitutional police action and
the evidence becomes so attenuated as to dissipate the taint from the un lawful
conduct.'" State v. Williams, 192 N.J. 1, 15 (2007) (quoting State v. Badessa,
185 N.J. 303, 311 (2005)). To determine whether the taint of unlawful conduct
has dissipated, a court must consider "three factors: (1) the temporal proximity
between the illegal conduct and the challenged evidence; (2) the presence of
intervening circumstances; and (3) the flagrancy and purpose of the police
misconduct." State v. Johnson, 118 N.J. 639, 653 (1990). The court does not apply
a "but for" test. Ibid.
We decline to reach the State's attenuation argument because the State did not
raise the issue before the trial court. We are not obliged to reach an issue that the
State did not present to the trial court in the first instance, when it does not affect
a significant public interest or the court's jurisdiction. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973). Furthermore, assessing attenuation is
usually a "factual matter," Johnson, 118 N.J. at 653, which the trial court was best-
suited to address in the first instance, see State v. Robinson, 200 N.J. 1, 20-21
(2009) (stating an "appellate court should stay its hand and forego grappling
with an untimely raised issue" that was not fully explored by the trial court). In
particular, the record does not disclose, and the trial court did not find, how
A-4731-17T1 23 much time passed after the troopers questioned Kerns and before they
discovered the CDS ("temporal proximity" factor); or what was the non-traffic-
related purpose of questioning Kerns ("flagrancy and purpose" factor).
We have declined to consider a new theory by the State to avoid applying
the exclusionary rule to an unconstitutional search or seizure, where the State
failed to develop the record when it had the chance to do so. See State v.
Mahoney, 226 N.J. Super. 617, 626 (App. Div. 1988) (declining to consider
State's inevitable discovery and search-incident-to-arrest arguments raised for
the first time on appeal); see also State v. Bradley, 291 N.J. Super. 501, 516-17
(App. Div. 1996) (declining to address inevitable discovery argument raised for
the first time on appeal).
The burden to establish an exception to the warrant requirement rests with
the State. Elders, 192 N.J. at 246. The State did not attempt to meet its burden
to establish attenuation before the trial court. Therefore, we decline the State's
invitation that, on appeal, we affirm the order denying suppression on
attenuation grounds.
E.
A-4731-17T1 24 In sum, the trial court should have granted defendant's motion to suppress
the drugs that police seized from him, incident to his arrest for hindering after
police asked him to identify himself.
II.
Turning to the second incident, the court correctly denied Kerns's motion
to suppress the drugs police seized incident to arrest after he returned from
Newark. Based on Kerns's participation in the two controlled buys, police had
probable cause to arrest him. We so conclude, even assuming, for argument's
sake, that police lacked probable cause to believe Kerns committed an offense
during his round trip to Newark. A successful controlled buy is "persuasive
evidence" to establish probable cause. State v. Keyes, 184 N.J. 541, 556 (2005),
and it is in this case. The trial court credited the police sergeant who testified
he directly observed the transactions. We also reject Kerns's argument that any
probable cause from the controlled buys was too stale to justify Kerns's arrest
two days later. The police investigation was still ongoing. They did not
unreasonably delay effectuating their arrest. Kerns's challenge to the court's
second order lacks sufficient merit to warrant further discussion. R. 2:11-
3(e)(2).
A-4731-17T1 25 Reversed as to the order in Indictment No. 17-01-0050; affirmed as to the
order in Indictment No. 17-01-0051; and remanded. We do not retain
jurisdiction.
A-4731-17T1 26 _____________________________
OSTRER, J.A.D., concurring.
Although we conclude the trial court should have suppressed the drugs in
Indictment No. 17-01-0050 because police unlawfully prolonged the traffic stop,
I write to express my concern about the effect on personal privacy when police
demand passengers' identification for reasons untethered to the purpose of the
motor vehicle stop, even when the stop is not prolonged.
Our Constitution imposes not only temporal limitations on a stop. Under
our Constitution, "police officers are required to use the least intrusive means
necessary in effectuating the purpose of an investigative detention." Chisum,
236 N.J. at 550. Our Court has consistently endorsed the "least intrusive means"
limitation. See State v. Shaw, 237 N.J. 588, 613 (2019) (stating "[o]ur
Constitution requires officers to pursue the least intrusive means when they
conduct an extended investigatory detention"); State v. Coles, 218 N.J. 322, 344
(2014) (stating an "officer must use the least intrusive means necessary to
effectuate the purpose of the investigative detention"); State v. Davis, 104 N.J.
490, 502 (1986) (stating that "the investigative methods employed should be the
least intrusive means reasonably available to verify or dispel the officer's
suspicion in a short period of time"). One may ask whether demanding that each
passenger state one's name and date of birth, and supply documents or otherwise prove that what they say is true, is the least intrusive means necessary for the
officer to complete the traffic-related investigation of the driver, which is the
purpose of the stop.
I acknowledge that the United States Supreme Court adopted the "least
intrusive means" standard, see Florida v. Royer, 460 U.S. 491, 500 (1983), but,
"in Illinois v. Caballes[, 543 U.S. 405 (2005)] . . . severely weakened the
'scope'/'intrusiveness' limitation by holding that an investigative technique does
not violate that limitation unless the particular tactic employed 'itself infri nged
[the detainee's] constitutionally protected interest in privacy,' i.e. was itself a
search," 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth
Amendment § 9.2(f) (6th ed. 2020) (alteration in original). The United States
Supreme Court has "concluded that the Fourth Amendment tolerate[s] certain
unrelated investigations that d[o] not lengthen the roadside detention," including
questioning and dog sniffs. Rodriguez, 575 U.S. at 354. And, our Supreme
Court followed suit with respect to dog sniffs. Dunbar, 229 N.J. at 539.
Nonetheless, our State Constitution protects persons from warrantless
searches and seizures more broadly than the Fourth Amendment. State v. Shaw,
237 N.J. 588, 616 (2019). In particular, our Constitution requires a g reater
showing than does the Fourth Amendment to justify an officer ordering a
A-4731-17T1 2 passenger to exit a stopped vehicle, Smith, 134 N.J. at 617, or to justify an
officer opening a passenger-side door of a stopped vehicle, State v. Mai, 202
N.J. 12, 23 n.4 (2010). Our Constitution sets a higher bar than the Fourth
Amendment for conducting consent searches of motor vehicles. Carty, 170 N.J.
at 638-39. Police must have "a reasonable and articulable basis beyond the
initial valid motor vehicle stop" in order to effectuate a consent search. Id. at
647.
Our Constitution protects more than an individual's interest in being free
from unnecessarily prolonged traffic stops. It also protects "the individual's
right to be protected from unwarranted and/or overbearing police intrusions."
Davis, 104 N.J. at 504; see also State v. Privott, 203 N.J. 16, 25-26 (2010)
(quoting Davis, 104 N.J. at 504). A police officer may not be "overbearing or
harassing in nature." Davis, 104 N.J. at 503 (quoting State v. Sheffield, 62 N.J.
441, 447 (1973)). Also, "'the degree of fear and humiliation that the police
conduct engenders'" is a factor that may convert an investigative stop into an
arrest. Dickey, 152 N.J. at 479 (quoting United States v. Lego, 855 F.2d 542,
544-45 (8th Cir. 1988)). In determining the reasonableness of police activity, a
court must balance the public's interest in being free from overbearing police
A-4731-17T1 3 activity against the State's law enforcement interests, in light of the "totality of
circumstances." Davis, 104 N.J. at 504.
The Court observed that requiring reasonable and articulable suspicion of
wrongdoing to request consent to search "serve[d] the prophylactic purpose of
preventing the police from turning a routine traffic stop into a fishing expedition
for criminal activity unrelated to the stop." Carty, 170 N.J. at 647. Yet, that is
what police may do, if they routinely conduct passenger identity checks. Once
unmoored from the reasonable and articulable suspicion that justified the stop
in the first place, or from a new reasonable and articulable suspicion that may
arise while fulfilling the traffic-related mission, the identity check may become
a form of "bait," and the decision to go "fishing" may become a purely
discretionary call, absent separate suspicion of wrongdoing. However, as our
Court has recognized, unbridled discretion threatens the values that underlie the
right to be free from unreasonable searches and seizures. Id. at 641.
We need not find that a passenger identity check is a "search" in order to
take it seriously. See LaFave, 4 Search & Seizure § 9.3(d) (criticizing the "no-
search-ergo-no-scope-violation oversimplification" of United States Supreme
Court jurisprudence). Our Constitution protects a person's privacy, as well as a
person's liberty. Requiring a passenger to stand outside a vehicle is not a search;
A-4731-17T1 4 but it is an "intrusion on the passenger's privacy" deserving of protection. Smith,
134 N.J. at 615. Commanding passengers to say who they are and when they
were born, and to produce proof that they are telling the truth, can be humiliating
and overbearing, especially if the passengers perceive that they have been
arbitrarily singled out for this form of unrelated investigation. It would make
no difference to the passenger that one's identity is a matter of public record.
The passenger about whom there is no reasonable and articulable suspicion of
wrongdoing, yet is seized roadside, has a right to be left alone.
In a free society, citizens are not subject to arbitrary commands to "show
their papers," or prove their identity. That was the fate of African-Americans
who had to show their "free papers" during slavery,1 and the fate of Jews who
had to show identification papers in the Warsaw Ghetto. 2 In Hornberger, we
quoted with approval the Massachusetts appellate court's observation that "'a
1 See Frederick Douglass, Life and Times of Frederick Douglass (1892) 245-49 (describing the "custom in the State of Maryland" to require African-Americans "to have what were called free papers," the alternative use of sailor's papers to establish one's free status, and an incident in which free persons were required to display their identification), republished on line and available at https://docsouth.unc.edu/neh/dougl92/dougl92.html. 2 See United States Holocaust Memorial Museum, Checking Papers in the Warsaw Ghetto, https://encyclopedia.ushmm.org/content/en/photo/checking- papers-in-the-warsaw-ghetto (last visited December 16, 2020). A-4731-17T1 5 random request for identification papers constitutes . . . the sort of request
uncomfortably associated with authoritarian societies and most commonly made
of persons belonging to a racial or ethnic minority.'" 351 N.J. Super. at 613
(quoting Com. v. Alvarez, 692 N.E.2d 106, 109 (Mass. App. Ct. 1998)).
Although the question arose in a police officers' lawsuit alleging that a broadcast
mischaracterized their actions, we held in Hornberger that officers may not
routinely demand identification from passengers during a traffic stop for a motor
vehicle violation. 351 N.J. Super. at 611-14. Unlike in Sirianni, we held that
the passengers were not free to refuse the police officers' identification request,
and the request lacked reasonable suspicion that the passengers had engaged in
wrongdoing. Id. at 612-13.3
3 In State v. Chapman, 332 N.J. Super. 452, 462 (App. Div. 2000), we considered "what inquiries may a police officer lawfully propound to an individual who has been stopped for a traffic infraction." We stated, "A police officer may not engage in 'excessive questioning about matters wholly unrelated to the purpose of a routine traffic stop.'" Id. at 463 (quoting United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)). However, because the trooper's questions about the occupants' itinerary were reasonably related to the erratic driving that prompted the stop, we had no need to define precisely what constituted "excessive." Ibid. In Hornberger, we effectively answered the question as it relates to identity checks, holding that they were unlawful under the circumstances presented there. 351 N.J. Super. at 613. Hornberger narrowed the scope of questioning that would be permitted under the unnecessarily broad statement in State v. Hickman, 335 N.J. Super. 623, 636 (App. Div. 2000), that during a valid motor vehicle stop, "police may question the occupants, even on
A-4731-17T1 6 The only reason the officer is physically able — as distinct from
constitutionally permitted — to inquire of a passengers' identity is that the
officer has seized the vehicle and everyone in it upon a reasonable and
articulable suspicion of a motor vehicle violation. Some states, eschewing the
federal approach, have adhered more closely to the principle that police activity
during the stop must be "reasonably related in scope to the circumstances which
justified the interference in the first place," Terry, 392 U.S. at 20, even if the
activity involves questioning rather than an actual search. See LaFave, 4 Search
& Seizure, § 9.3(d) and n. 288 (approvingly citing cases).
Courts of other states have concluded that asking passengers for
identification without reasonable or articulable grounds is an unconstitutional
intrusion. For example, a passenger's "mere presence" during a traffic stop for
a faulty license plate light did not "tip the balance" in favor of demanding
identification in State v. Affsprung, 87 P.3d 1088, 1095 (N.M. Ct. App. 2004).
"To permit law enforcement officers to ask for and to check out passenger
identification under these circumstances opens a door to the type of
a subject unrelated to the purpose of the stop, without violating the Fourth Amendment, so long as such questioning does not extend the duration of the stop." In that case, it was within the traffic-related mission for police to ask the defendant-passenger if he had a driver's license or permission to use the car, as the driver lacked a valid license and registration. Id. at 635, 637. A-4731-17T1 7 indiscriminate, oppressive, fearsome authoritarian practices and tactics of those
in power that the Fourth Amendment was designed to prohibit." Ibid. See also
Alvarez, 692 N.E.2d at 109 (reaffirming prior caselaw that police must have a
reasonable and articulable suspicion before demanding identification from
passengers); State v. Rankin, 92 P.3d 202, 203 (Wash. 2004) (holding that the
state's constitution "affords automobile passengers a right of privacy that is
violated when an officer requests identification from a passenger for
investigative purposes, absent an independent basis for making the request") ;
Campbell v. State, 97 P.3d 781, 785 (Wyo. 2004) (holding that "[d]uring the
stop, an officer generally may not ask the detained motorist questions unrelated
to the purpose of the stop, including questions about controlled substances,
unless the officer has reasonable suspicion of other illegal activity");4 cf. State
v. Robbins, 171 A.3d 1245, 1249-50 (N.H. 2017) (stating test, under state
constitution, that police questioning may not "change[] the fundamental nature
of the stop," even if the questioning does not prolong the stop, when the question
is not "reasonably related to the initial justification for the stop" and the officer
lacked other "reasonable, articulable suspicion that would justify the question") .
4 But see Marquez-Guitierrez v. State, 167 P.3d 1232, 1236 (Wyo. 2007) (stating that an officer may engage a passenger in "idle chit chat"). A-4731-17T1 8 Because we hold that the troopers unlawfully prolonged the traffic stop,
we need not decide that requiring Kerns to identify himself violated his State
constitutional rights. Yet, I express my concern about a rule that would allow
police to routinely demand that passengers say who they are, and prove that what
they say is so, for reasons unsupported by reasonable and articulable suspicion
of wrongdoing and for reasons unrelated to officer safety, so long as the inquiry
does not prolong the stop. Such a rule would threaten individual privacy, open
the door to "fishing expeditions," and increase the risk of arbitrary exercises of
police discretion.
A-4731-17T1 9