                                NOT FOR PUBLICATION WITHOUT THE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-0396-19T2

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

VINCENT L. DIXON,

     Defendant-Respondent.
____________________________

                   Submitted March 16, 2020 – Decided April 30, 2020

                   Before Judges Sumners and Natali.

                   On appeal from an interlocutory order of the Superior
                   Court of New Jersey, Law Division, Middlesex County,
                   Indictment No. 18-05-0840.

                   Gurbir S. Grewal, Attorney General, attorney for
                   appellant (Daniel Ian Bornstein, Assistant Attorney
                   General, of counsel and on the briefs).

                   Joseph E. Krakora, Public Defender, attorney for
                   respondent (Ravi P. Shah, Assistant Deputy Public
                   Defender, on the brief).

PER CURIAM
      On leave granted, the State requests we overturn the trial court's order to

suppress drugs found in a warrantless search of defendant's car following a

roadside stop. Before us, the State makes the single-point argument:

            THE TRIAL JUDGE COMMITTED LEGAL ERROR
            IN SUPPRESSING EVIDENCE THAT WAS
            LAWFULLY       SEIZED    DURING     A
            CONSTITUTIONALLY PERMISSIBLE SEARCH
            UNDER THE AUTOMOBILE EXCEPTION TO THE
            SEARCH WARRANT REQUIREMENT.

We conclude the automobile exception to a warrant requirement did not apply

to the warrantless search. A warrant to search defendant's car was necessary

under State v. Witt, 223 N.J. 409 (2105), despite a drug-sniffing canine's "hit"

that drugs were in the car. The search for drugs was not unforeseeable and

spontaneous because defendant was under police surveillance for distribution of

drugs when his car was stopped, and the police had reason to believe drugs were

in the car. We therefore affirm.

                                       I

      The suppression hearing revealed the following uncontroverted testimony

of the events culminating in the warrantless search of defendant's car. On

November 29, 2017, acting on a tip from a reliable confidential informant,




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                                       2
Edison Police Detective Michael Carullo along with fellow Detective Sorber 1

conducted surveillance of an Edison industrial park where they suspected drugs

were being sold to warehouse employees. The detectives observed defendant:

drive up to the warehouse, pick up a man wearing a warehouse uniform who had

been pacing outside the warehouse for several minutes prior to defendant's

arrival, and drive him for a short three-minute ride before dropping him back off

at the warehouse. The detectives remained at their surveillance location during

the pick-up and drop-off.

        Combined with the informant's tip and his training and experience with

drug-related activity, Carullo believed the observed rendezvous was a drug sale.

To confirm his suspicion, Carullo radioed fellow Edison police officers to stop

defendant's car, then he and Sorber joined the stop moments thereafter. Carullo's

subsequent questioning of defendant, who had been removed from the vehicle

and handcuffed by the other officers, led him to conclude defendant lied when

claiming to have stopped at the warehouse to apply for a job and then gave

someone a ride to a convenience store to buy cigarettes.2 After defendant


1
    Detective Sorber's first name is not disclosed in the record.
2
  Carullo testified defendant never got out of the car, and being familiar with
the area's traffic conditions, he was certain defendant's short three-minute drive
was not enough time to go to a nearby store to make a purchase.
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                                          3
refused to give consent to search his car, a call was made to have a drug-sniffing

canine come to the scene.

      About twenty-minutes after the stop was initiated, the canine arrived and

made a positive hit that drugs were in the car. Apparently, uncertain whether a

warrantless search of the car should be effectuated but acknowledging it would

have been easy to apply for a search warrant, Carullo revealed he sought

direction from the Middlesex Prosecutor's Office. After an Assistant Prosecutor

on duty advised him there was no need for a warrant, a search of the car

uncovered crack cocaine and heroin, plus Xanax and Clonazepam pills, which

led to defendant's indictment for various drug offenses.

      The motion judge granted defendant's motion to suppress the drugs. In

his oral decision, the judge relied upon the reasoning articulated in State v.

Nelson, 237 N.J. 540 (2019) and State v. Dunbar, 229 N.J. 521 (2017), which

the judge recognized did not specifically address the automobile exception to

warrantless searches. The judge determined the State had reasonable articulable

suspicion to stop defendant's vehicle based on Carullo's "very credible"

testimony that defendant sold drugs to the warehouse employee he picked up

and dropped back off at the warehouse. Nevertheless, the judge rejected the

State's claim that the warrantless search fell within the automobile exception.


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                                        4
The judge reasoned "the whole purpose of the stop was to investigate . . .

[suspected] drug activity," thus probable cause that there were drugs in the car

was "not spontaneous or unforeseeable, it was rather predictable based on the

[canine's] sniff." The judge further found the search problematic because there

were no exigent circumstances demonstrating "some identifiable risk either to

the safety to the officers, or to the destruction of evidence." Thus, a search

warrant should have been sought, which "more likely than not would have been

obtained."

                                        II

       In its merits brief, the State initially contends the motion judge's ruling

was procedurally flawed because defendant only challenged the constitutionality

of the roadside stop and detention, and the judge "should not have even

considered the constitutionality of the search . . . ." The State thus posits "any

argument pertaining to the constitutionality of the search was not properly

preserved in [defendant's] motion and should be waived." Citing Witt, 223 N.J.

at 418-19, the State contends had it been aware the actual search was under

scrutiny, it would have been on notice to create an adequate record on the issue

and argued the discovery of the drugs would have been inevitable. We discern

no merit to this contention.


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                                        5
      The State's reliance on Witt is misplaced. There, the Court rejected the

defendant's challenge to a roadside stop because the defendant raised the

contention for the first time on appeal and "the State was deprived of the

opportunity to establish a record that might have resolved the issue through a

few questions to" the investigating police officer. Id. at 419. Underscoring

without a trial record, the Court acknowledged the long-standing principle that

appellate review is impeded under such circumstances. Ibid. (citing State v.

Robinson, 200 N.J. 1, 20 (2009)).

      Here, despite defendant's failure to specifically raise the issue of the

search in its motion to suppress before the court, the motion record addresses

the issue. The State, being fully aware of its burden to establish the warrantless

search and seizure was justified under the circumstances, State v. Mann, 203

N.J. 328, 337-38 (2010), through Carullo's testimony and its argument – without

the judge's inquiry – contended the search was constitutional under the

automobile exception. After the State asserted there was reasonable suspicion

to effectuate a motor vehicle stop, Carullo's "first hurdle," it argued the "next

hurdle" was whether the automobile exception applied to conduct a warrantless

search. The State maintained after consent to search was not obtained, the




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                                        6
canine sniff led to a hit there were drugs in a car, where upon an Assistant

Prosecutor counseled Carullo a warrant was not necessary to search the car.

      Further, during the suppression hearing, the State cited case law – in

particular Witt – to support its position, and at no point before or after the judge's

oral decision, did it indicate it was not on notice to present testimony or be

prepared to address the automobile search issue. Simply put, the State addressed

all legitimate factual and legal issues arising from its warrantless search. It

cannot now claim foul by the motion judge on appeal.

                                         III

      Turning to the substantive issue of this appeal, the State contends, under

Witt, the warrantless search of defendant's car was a proper application of the

automobile exception. Based upon our interpretation of Witt, and its application

that has since developed, most notably, State v. Rodriguez, 459 N.J. Super. 13

(App. Div. 2019), we disagree.

      Because the facts are not in dispute and the State argues the motion judge

misapplied the law, we examine this legal issue de novo. See State v. Gamble,

218 N.J. 412, 425 (2014). Hence, we need not consider whether the judge's

factual findings were supported by the record. See Rowe v. Mazel Thirty, LLC,




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                                          7
209 N.J. 35, 50 (2012) (citing Gilhooley v. Cty. of Union, 164 N.J. 533, 545

(2000)).

      The legal issue here is whether the automobile exception to the Fourth

Amendment's warrant requirement applies. It is well-established that the Fourth

Amendment of the United States Constitution and Article I, Paragraph 7 of the

New Jersey Constitution, require police to obtain warrants before making

searches and seizures. Yet, judicially recognized exceptions to the warrant

requirement allow the State to show that a warrantless search was justified.

State v. Pineiro, 181 N.J. 13, 19 (2004). One such exception is the automobile

exception.

      In Witt, the Court "announced . . . a sharp departure from a more narrow

construction of the automobile exception." Rodriguez, 459 N.J. Super. at 21.

As Rodriguez explains, the Witt decision observed the "multi-factor exigent

circumstances test" of prior case law was "difficult to apply with consistency,

particularly for law enforcement officers on patrol, and placed upon them

'unrealistic and impracticable burdens.'" Ibid. (citing Witt, 223 N.J. at 414-15).

The Witt Court restated the test to authorize automobile searches where "(1) the

police have probable cause to believe the vehicle contains evidence of a criminal

offense; and (2) the circumstances giving rise to probable cause are


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                                        8
unforeseeable and spontaneous." Id. at 22 (citing Witt, 223 N.J. at 447-48).

Thus, Witt readopted a bright-line rule "affording police officers at the scene

the discretion to choose between searching the vehicle immediately if they

spontaneously have probable cause to do so, or to have the vehicle removed and

impounded and seek a search warrant later." Id. at 24 (emphasis added).

      Applying the Witt test, this warrantless automobile search does not pass

constitutional muster. We start by recognizing there was reasonable suspicion

for an investigatory stop of defendant's car based on the confidential informant's

tip and defendant's picking up the waiting warehouse employee and dropping

him back off three-minutes later. As did the motion judge, we take no issue with

Carullo's assessment, based upon his experience and training, that drugs had just

been sold. After defendant's consent to search the car was not obtained, Carullo

lawfully requested the trained canine, whose hit indicated drugs were in the car,

thereby establishing probable cause. See Dunbar, 229 N.J. at 538 (holding a

canine sniff "does not transform an otherwise lawful seizure into a search that

triggers constitutional protections"). The warrantless search then ensued.

      The circumstances, however, giving rise to probable cause to search

defendant's car were not "unforeseeable and spontaneous" as required by Witt

to validate a warrantless search. Defendant's car was pulled over by officers


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                                        9
after Carullo radioed a description of defendant and his car with the direction to

stop him because they believed he had just sold drugs. This investigatory stop

was based on surveillance of the warehouse that was initiated by the confidential

informant's tip.    Stopping defendant's car was not based on some traffic

violation, which then led to probable cause to conduct a warrantless search. See

Rodriguez, 459 N.J. Super. at 15, 25-26. The pursuit, car stop, and canine sniff

were solely based on Carullo and Sorber's beliefs that defendant had drugs in

his car.   Under Witt, the automobile exception to a warrantless search of

defendant's car does not apply as their goal was a clear and deliberate effort to

uncover drugs. There was nothing spontaneous about the decision to search

defendant's car.    A search warrant should have been sought, and it is not

speculative to state, it would have been granted under these circumstances.

      The State's reliance on State v. Gonzales, 227 N.J. 77 (2016) is misplaced.

The State argues Gonzales applied the automobile exception where the police

conducted a warrantless search after a lengthy wiretap investigation led them to

suspect the defendant had drugs in his car intended to be sold. 227 N.J. at 82-

86. In Gonzales, the automobile exception was applied in combination with the

plain view exception because the drugs were observed in the car. Id. 104. The

Court recognized:


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                                       10
            In Witt, . . . we specifically noted that, in the case of a
            car suspected of containing drugs parked in a driveway,
            "if the circumstances giving rise to probable cause were
            foreseeable and not spontaneous, the warrant
            requirement applies." 223 N.J. at 448 . . . . In short,
            when the police have sufficient time to secure a
            warrant, they must do so.

            [Gonzales, 227 N.J. at 104-05.]

      The record here indicates insufficient time was not the reason a search

warrant was not obtained. Carullo admitted he could have easily obtained a

search warrant but deferred to the Assistant Prosecutor's guidance. Based on

our analysis, he was wrongly advised he did not need to secure a search warrant.

Under Witt and Rodriguez, the warrantless roadside search of defendant's car

was unconstitutional.

      Affirmed.




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