STATE OF NEW JERSEY VS. YACHOR R. NAPPER AND BRANDON E. FIGARO (18-02-0233, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 19, 2019
• Docket: A-4822-17T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4822-17T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

YACHOR R. NAPPER and BRANDON E. FIGARO,

Defendants-Respondents. ___________________________

Submitted February 5, 2019 – Decided February 19, 2019

Before Judges Fisher and Geiger.

On appeal from interlocutory orders of Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 18-02-0233.

Damon G. Tyner, Atlantic County Prosecutor, attorney for appellant (Dylan P. Thompson, Assistant Prosecutor, of counsel and on the brief).

Mark A. Bailey, attorney for respondent Yachor R. Napper.

Murray N. Sufrin, attorney for respondent Brandon E. Figaro, joins in the brief of respondent Yachor R. Napper. PER CURIAM

Upon leave granted, the State appeals from two interlocutory Law

Division orders granting defendants Yachor R. Napper and Brandon E. Figaro's

motion to suppress evidence seized during a warrantless vehicle search, and

denying the State's motion for reconsideration. We reverse and remand.

At about 1:30 p.m. on November 2, 2016, Pleasantville Police Department

Officers Tell and VanSyckle were on patrol when they came upon a Hyundai

Sonata with an unclear temporary Delaware registration stopped in the lane of

travel impeding traffic while the occupants spoke to a woman on the sidewalk.

The officers initiated a traffic stop. Napper was the driver and Figaro was in the

front passenger seat. The officers knew Figaro had a history of weapons and

drug distribution offenses.

Officer VanSyckle approached the passenger side window and Officer

Tell approached the driver's side window. Officers VanSyckle and Tell

observed a bulge in the pocket in the front waist area of Napper's hooded

sweatshirt. They were concerned it could be a gun. Officer VanSyckle

acknowledged there was nothing specific about the shape of the bulge that would

indicate it was a gun other than its location in the waistband area. Officer

VanSyckle ordered Napper to turn off and exit the vehicle. Napper refused,

A-4822-17T2 2 becoming rude. Officer Tell conducted a pat down of Napper after he finally

exited the vehicle and discovered the bulge was a winter hat. Napper was asked

to remain outside the vehicle. Officer Tell requested Napper's driver's license

and vehicle registration.

Officer VanSyckle then observed a black object that resembled the

rubberized handle of a handgun in the map pouch on the backside of the

passenger seat. He handcuffed Napper and placed him on the ground. Officer

Tell removed Figaro from the vehicle for officer protection, handcuffed him,

and placed him on the ground pending an investigation. The object in the seat

pouch turned out to be a black metal hammer with a rubberized grip.

Officer VanSyckle contacted Delaware authorities regarding the vehicle's

temporary registration and learned the registration was for a Volkswagen Jetta.

He also learned the vehicle was not reported stolen. Due to the fictitious

registration, Officer VanSyckle requested a tow truck to transport the vehicle to

an impound lot.

Officer VanSyckle noticed a suspicious, "very visible" gap between the

air vents and the dashboard. The plastic panel around the vehicle's radio and

center air vents was loose and the seams were not properly aligned. Based on

A-4822-17T2 3 his training and experience, Officer VanSyckle believed the dashboard had been

tampered with.

At the time of the stop, Officer VanSyckle had approximately seven years

experience as a police officer. His training included an eight-hour class on

electronically operated hidden compartments within vehicles and a Drug

Enforcement Administration class on how to locate, access, and observe

indicators of hidden compartments in different vehicle makes and models. His

experience included a recent incident involving a vehicle with a temporary

Delaware registration that had an electronically operated hidden compartment

in the dashboard where the front passenger's side airbag had been removed.

Officer VanSyckle suspected the dashboard had a hidden compartment

containing a concealed controlled dangerous substance (CDS). Officer

VanSyckle believed the vehicle contained contraband in the dashboard. He

asked defendants for consent to search the vehicle; the record does not disclose

their response. The officers then requested a K-9 unit to conduct a canine drug

detection sniff test of the vehicle.

Defendants were allowed to leave the scene because the officers

determined there was no reason to keep them. By that point the stop "was well

within probably about forty-five minutes." The officers did not issue any

A-4822-17T2 4 summonses to defendants at the scene because Officer VanSyckle did not have

his ticket book. He subsequently mailed the motor vehicle summons.

The K-9 unit arrived approximately ten minutes after the officers' request.

By that point defendants had already left the scene. The K-9 unit gave a positive

indication for narcotics. A subsequent search of the vehicle revealed a defaced,

fully loaded Ruger .45 caliber handgun in a hidden dashboard compartment. The

search also uncovered a quantity of CDS, which later tested positive for heroin,

and a large quantity of drug distribution materials. Napper and Figaro were then

located and arrested on CDS and weapon charges.

A grand jury indicted defendants for second-degree unlawful possession

of a handgun, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a handgun

while committing a CDS offense, N.J.S.A. 2C:39-4.1(a); third-degree

possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(3); fourth-

degree prohibited weapons and devices, N.J.S.A. 2C:39-3(d); third-degree

possession of CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7;

and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). On February 13,

2018, a superseding indictment was issued.1

1 The superseding indictment included additional weapon and CDS charges against Napper resulting from a subsequent traffic stop. The vehicle search leading to the additional charges is not at issue in this appeal. A-4822-17T2 5 Napper moved to suppress the physical evidence seized during the

warrantless vehicle search. Figaro joined in the motion. Defendants argued by

waiting for the K-9 unit to arrive at the scene, the officers prolonged the stop

beyond the reasonable time required to complete the traffic stop's mission, and

that the officers should not have released defendants from the scene. Defendants

also contended the automobile exception to the warrant requirement does not

apply, because the search of the vehicle after defendants were released from the

scene cannot be considered unforeseeable or spontaneous. Defendants further

argued the search did not fall under the exigent circumstances exception to the

warrant requirement because an officer could have stayed with the vehicle until

a warrant was issued or the tow truck arrived.

The trial court conducted a two-day suppression hearing. Officer

VanSyckle was the only witness who testified as to this vehicle search. The trial

court issued a subsequent order and oral and written decisions suppressing the

evidence seized from the vehicle. The motion judge found the officers'

justification for releasing defendants from the scene before the canine sniff was

conducted "must fail because they had probable cause to call for a canine unit."

Noting the officers had a reason to keep the defendants at the scene but decided

not to, the court stated:

A-4822-17T2 6 Once the officers informed the defendants that the vehicle was going to be impounded, one of the four officers on the scene should have called for a search warrant instead of waiting for the canine unit to arrive. By waiting for the canine unit, the officers prolonged the stop beyond a reasonable time required to complete the stop[']s mission.

The judge concluded the officers should have kept defendants at the scene and

sought a search warrant upon requesting a tow truck to impound the vehicle.

The judge did not make any credibility findings.

The State moved for reconsideration, arguing the holding in State v.

Dunbar, 229 N.J. 521 (2017), concerning a traffic stop extending beyond a

reasonable time, applies only to persons detained, not to vehicles. Relying on

State v. Witt, 223 N.J. 409 (2015) and State v. Alston, 88 N.J. 211 (1981), the

State argued because the officers had probable cause to believe the vehicle

contained contraband, the search of the vehicle was permitted under the

automobile exception to the warrant requirement. Emphasizing that the car is

accessible to third persons who might destroy evidence because "the car is

readily movable until such time as it is seized, removed from the scene and

securely impounded by police," the State contends "when there is probable cause

to conduct an immediate search at the scene of the stop, the police are not

required to delay the search by seizing and impounding the vehicle pending

A-4822-17T2 7 review of that probable cause determination by a magistrate." Alston, 88 N.J.

at 234-35.

The motion judge denied reconsideration, but the record on appeal does

not reflect if the judge issued an oral or written decision stating the basis for her

decision. See R. 2:5-6(c) (requiring the motion judge to submit "a written

statement of reasons for the disposition" upon the filing of a motion for

interlocutory appeal if the judge had not previously "filed a written statement of

reasons or if no verbatim record was made of any oral statement of reasons");

see also R.1:6-2(f).

We granted the State's motion for leave to appeal from the two orders.

The State raises the following points:

POINT I THE TRIAL COURT ERRED IN DECIDING THE SEARCH OF THE VEHICLE WAS UNLAWFUL BECAUSE THE SEARCH OF THE OFFICERS PROLONGED THE TRAFFIC STOP.

POINT II THE SEARCH OF THE VEHICLE WAS LAWFUL UNDER THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT.

POINT III THE SEARCH OF THE VEHICLE WAS LAWFUL UNDER THE DESTRUCTION OF EVIDENCE [EXIGENT] CIRCUMSTANCE EXCEPTION TO THE WARRANT REQUIREMENT.

A-4822-17T2 8 "Appellate review of a motion judge's factual findings in a suppression

hearing is highly deferential." State v. Gonzales, 227 N.J. 77, 101 (2016) (citing

State v. Hubbard, 222 N.J. 249, 262 (2015)). "[A]n appellate court reviewing a

motion to suppress 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. Rockford, 213 N.J. 424, 440 (2013) (alteration in

original) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings

warrant particular deference when they are 'substantially influenced by [the trial

court's] opportunity to hear and see the witnesses and to have the "feel" of the

case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original)

(quoting Robinson, 200 N.J. at 15). "Thus, appellate courts should reverse only

when the trial court's determination is 'so clearly mistaken that the interests of

justice demand intervention and correction.'" State v. Gamble, 218 N.J. 412,

425 (2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)).

"A trial court's interpretation of the law, however, and the consequences

that flow from established facts are not entitled to any special deference.

Therefore, a trial court's legal conclusions are reviewed de novo." Ibid. (citing

State v. Gandhi, 201 N.J. 161, 176 (2010)).

A-4822-17T2 9 A traffic "stop by a police officer constitutes a seizure under both the

Federal and New Jersey Constitutions." Dunbar, 229 N.J. at 532 (citing Arizona

v. Johnson, 555 U.S. 323, 333 (2009); State v. Scriven, 226 N.J. 20, 33 (2016)).

A police officer must have reasonable suspicion that someone in the car is

committing a motor vehicle violation or a criminal or disorderly persons offense

in order to justify a traffic stop. Dunbar, 229 N.J. at 533; Scriven, 226 N.J. at

33.

"During an otherwise lawful traffic stop, a police officer may 'inquire into

matters unrelated to the justification for the traffic stop.'" Dunbar, 229 N.J. at

533 (quoting Johnson, 555 U.S. at 333). This includes verifying the driver's

license, registration, proof of insurance, and whether the driver has any

outstanding warrants. Ibid. If "during the initial stop or further inquiries, 'the

circumstances give rise to suspicions unrelated to the traffic offense , an officer

may broaden [the] inquiry and satisfy those suspicions.'" Ibid. (alteration in

original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). The stop may

not be unreasonably prolonged "absent the reasonable suspicion ordinarily

demanded to justify detaining an individual." Id. at 533-34 (quoting Rodriguez

v. United States, 575 U.S. ___, 135 S.Ct. 1609, 1615 (2015)); see also Dickey,

A-4822-17T2 10 152 N.J. at 476-79 (noting detention can become unlawful if longer than needed

to diligently investigate suspicions).

However, "an officer does not need reasonable suspicion independent

from the justification for a traffic stop in order to conduct a canine sniff."

Dunbar, 229 N.J. at 540. Nevertheless, "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. (citing Rodriguez, 135 S.Ct. at 1616-17). Absent such

suspicion, an officer may not prolong the stop.

In Witt, our Supreme Court abandoned the "pure exigent-circumstances

requirement" it had added to the constitutional standard to justify an automobile

search and returned to the standard set forth in Alston. 223 N.J. at 447. The

Court held a warrantless search of an automobile is authorized under the

automobile exception "when the police have probable cause to believe that the

vehicle contains contraband or evidence of an offense and the circumstances

giving rise to probable cause are unforeseeable and spontaneous." Ibid. (citing

A-4822-17T2 11 Alston, 88 N.J. at 233). 2 "However, when vehicles are towed and impounded,

absent some exigency, a warrant must be secured." Id. at 450.

Here, the traffic stop was justified because the police officers had a

reasonable suspicion the driver was committing a motor vehicle violation. The

police were permitted to ask the driver to produce his driver's license, proof of

insurance, and vehicle registration. The officers were justified in removing the

driver and passenger after observing what may have been a weapon under the

driver's sweatshirt and what appeared to be the handle of a handgun protruding

from a map pocket. Further investigation revealed the out-of-state temporary

registration for the vehicle was expired and pertained to a different vehicle. This

allowed the officers to impound the vehicle.

The police officers did not need additional justification to conduct a

canine drug sniff test. The K-9 unit alerted for narcotics in the car. In addition,

Officer VanSyckle observed the plastic around the vehicle's radio and center air

vents was loose and the seams were not properly aligned and a small gap in the

glove box. Based on his training and experience, Officer VanSyckle reasonably

believed the dashboard could contain narcotics. Viewed through the prism of

2 The holding in Witt was given prospective application from the date of the opinion. Id. at 450. Witt was decided prior to the November 2, 2016 investigatory stop in this case and, therefore, applies to this case. A-4822-17T2 12 the officers' experience and knowledge of Figaro's criminal history, it was

entirely appropriate for the police officers to reasonably suspect the vehicle

contained contraband.

In order to establish probable cause to conduct a search, the State must

show from the totality of the circumstances there is "a fair probability that

contraband or evidence of a crime will be found in a particular place." State v.

Chippero, 201 N.J. 14, 28 (2009) (quoting United States v. Jones, 994 F.2d 1051,

1056 (3d Cir. 1993)). That standard was clearly met here. The police officers

had probable cause to believe the vehicle contained CDS.

By any measure, "the circumstances giving rise to probable cause [were]

unforeseeable and spontaneous." Witt, 223 N.J. at 447 (citing Alston, 88 N.J.

at 233). The police were not looking for either defendant or the vehicle they

occupied at the time the stop was made. Therefore, the warrantless vehicle

search was fully justified by the automobile exception reestablished in Witt. The

fact the police officers requested a tow truck to impound the vehicle does not

change the result. The search was conducted roadside before the vehicle was

towed and impounded.

The release of the defendants from the scene did not obviate the

justification for the search of the vehicle. At that point the officers did not have

A-4822-17T2 13 grounds to arrest defendants and were unable to issue traffic summonses because

they lacked a ticket book. We further conclude the additional time expended to

determine if the Delaware temporary registration was valid and to conduct the

canine drug sniff of the vehicle was reasonable given the unfolding events

during the roadside stop. Therefore, the warrantless search was permissible.

For these reasons, the trial court erred by suppressing the physical

evidence seized from the vehicle and by denying reconsideration. We reverse

the March 13, 2018 and April 9, 2018 orders and remand this matter for trial.

We do not retain jurisdiction.

Reversed and remanded.

A-4822-17T2 14