                                NOT FOR PUBLICATION WITHOUT THE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-5292-18T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

MELQUAN KENT and
MAURICE LOWERS,

     Defendants-Respondents.
______________________________

                    Submitted December 4, 2019 — Decided December 19, 2019

                    Before Judges Koblitz, Whipple, and Mawla.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Cumberland
                    County, Indictment No. 19-02-0173.

                    Jennifer    Webb-McRae,         Cumberland      County
                    Prosecutor, attorney for appellant (Stephen Christopher
                    Sayer, Assistant Prosecutor, of counsel and on the
                    brief).

                    Clarence J. Mattioli, Jr., attorney for respondent
                    Melquan Kent.
            Joseph E. Krakora, Public Defender, attorney for
            respondent Maurice Lowers (Dinaz Akhtar, Assistant
            Deputy Public Defender, on the brief).

PER CURIAM

      On leave granted, the State appeals from a June 17, 2019 order granting

defendants Melquan Kent's and Maurice Lowers' motion to suppress a gun and

narcotics evidence seized pursuant to a motor vehicle stop. We affirm.

      Millville City Police Detective Ryan Stroup was the sole witness to testify

at the suppression hearing. He testified that in June 2018, he witnessed Lowers

driving a car and Kent in the passenger seat. Stroup stated he knew Lowers had

a suspended license because he "check[ed] constantly, different subjects who

are regularly investigated." Therefore, he stopped the vehicle on suspicion of

driving with a suspended license. Stroup obtained Lowers' credentials and

returned to his vehicle to prepare a motor vehicle summons. Stroup checked

with dispatch to confirm Lowers' license was suspended and began to write the

motor vehicle summons.

      In the meantime, other officers began to arrive at the scene. Prior to

completing the summons, a canine unit appeared and began a canine sniff of the

vehicle defendants occupied. Stroup testified he did not summon the canine unit

but paused writing the summons and exited his vehicle to assist the other officers


                                                                          A-5292-18T1
                                        2
and oversee the removal of defendants from the vehicle so officers could safely

complete the canine sniff. Stroup believed his assistance was necessary because

defendants were "very close associates of a very violent street gang . . . ."

      When defendants exited the vehicle, both were patted down because

"Lowers [was] known to be in possession of firearms in the past." During the

pat-down, police observed the barrel of a handgun protruding from underneath

the passenger seat, where Kent was sitting. Defendants were arrested. After the

arrest, the canine sniff revealed the presence of narcotics in the vehicle. Police

recovered narcotics from Lowers' person.

      Defendants argued the evidence was seized unlawfully because the canine

sniff was unrelated to, and prolonged, the motor vehicle stop. They argued

police lacked probable cause to compel them to exit the vehicle, pat them down,

and search the vehicle. The State argued the stop was not prolonged and it

duration was "immaterial because as soon as [the canine] alerted, that car is

going to be searched . . . [and] that gun is going to be located, so the discovery

of the gun is inevitable at that point."

      The motion judge disagreed the gun was inevitably discoverable. He

stated:

             That's not the point at all. The point is, why are they
             being detained beyond the traffic stop? The officer

                                                                           A-5292-18T1
                                           3
      testified there was no reason to arrest them. They had
      no reason to hold them. There was no reason to detain.

             And the problem is . . . that as soon as he stopped
      writing the ticket, that was a delay in the issuance of
      the summons and the delay was engendered by the sniff
      itself and there was no articulable suspicion of current
      criminal activity, even if he recognized . . . Lowers as
      a gang-affiliated individual.

The State raises the following points on appeal:

      THE RULING OF THE LOWER COURT SHOULD
      BE DISTURBED IN THIS CASE, WHERE THAT
      COURT ERRED IN GRANTING THE MOTION TO
      SUPPRESS.

          A.  THE MOTOR VEHICLE STOP WAS
      NOT "PROLONGED" BY THE OFFICER'S DE
      MINIMIS MOMENTARY DIVERSION FROM
      COMPLETING THE TRAFFIC TICKET IN THIS
      CASE, AND THUS NO SEPARATE BASIS OF
      REASONABLE SUSPICION WAS REQUIRED IN
      ORDER TO VALIDATE THE SUBSEQUENT
      DISCOVERY OF EVIDENCE OBSERVED IN PLAIN
      VIEW FROM WITHIN THE MOTOR VEHICLE.

          B.   THE LOWER COURT ERRED IN
      SUPPRESSING THE EVIDENCE DUE TO THE
      DOCTRINE OF INEVITABLE DISCOVERY (NOT
      RAISED BELOW).

          C.   THE INTERESTS OF JUSTICE ARE
      NOT SERVED BY DISINCENTIVIZING OFFICERS
      FROM BEING MINIMALLY INTRUSIVE DURING
      TRAFFIC STOPS AND PRIORITIZING OFFICER
      SAFETY (NOT RAISED BELOW).


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                                  4
                                        I.

      "An appellate court reviewing a motion to suppress evidence in a criminal

case must uphold the factual findings underlying the trial court's decision,

provided that those findings are 'supported by sufficient credible evidence in the

record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven,

226 N.J. 20, 40 (2016)). It does so "because those findings 'are substantially

influenced by [an] opportunity to hear and see the witnesses and to have the

"feel" of the case, which a reviewing court cannot enjoy.'" State v. Gamble, 218

N.J. 412, 424-25 (2014) (alteration in original) (quoting State v. Johnson, 42

N.J. 146, 161 (1964)). "An appellate court should disregard those findings only

when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222

N.J. 249, 262 (2015) (citing Johnson, 42 N.J. at 162).           However, legal

conclusions are reviewed de novo. State v. Gandhi, 201 N.J. 161, 176 (2010)

(citation omitted); see also State v. Watts, 223 N.J. 503, 516 (2015).

                                       A.

      The Fourth Amendment of the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution protect against unreasonable

searches and seizures. "A lawful roadside stop by a police officer constitutes a

seizure under both the Federal and New Jersey Constitutions." State v. Dunbar,


                                                                          A-5292-18T1
                                        5
229 N.J. 521, 532 (2017). "To be lawful, an automobile stop 'must be based on

reasonable and articulable suspicion that an offense, including a minor traffic

offense, has been or is being committed.'" State v. Bacome, 228 N.J. 94, 103

(2017) (quoting State v. Carty, 170 N.J. 632, 639-40 (2002)).

      "[I]n those situations in which there is at least articulable and reasonable

suspicion that a motorist is unlicensed . . . stopping an automobile and detaining

the driver in order to check his driver's license" is reasonable under the Fourth

Amendment. Delaware v. Prouse, 440 U.S. 648, 663 (1979). During such a

stop, police officers are permitted to "inquire 'into matters unrelated to the

justification for the traffic stop.'" Dunbar, 229 N.J. at 533 (quoting Arizona v.

Johnson, 555 U.S. 323, 333 (2008)). However, "[a]uthority for the seizure . . .

ends when tasks tied to the traffic infraction are—or reasonably should have

been—completed." Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015).

      "Lacking the same close connection to roadway safety as the ordinary

inquiries, a dog sniff is not fairly characterized as part of the officer's traffic

mission."    Id. at 1615.      Absent articulable, reasonable suspicion, the

unreasonable extension of a motor vehicle stop to conduct a canine sniff

constitutes an unreasonable seizure. Id. at 1614-15 (holding that the time of the

motor vehicle stop must be the time reasonable to complete "tasks tied to the


                                                                           A-5292-18T1
                                        6
traffic infraction.").   The New Jersey Supreme Court adopted this federal

standard in Dunbar, 229 N.J. at 533-34.

       The Dunbar Court held "an officer does not need reasonable suspicion

independent from the justification for a traffic stop . . . to conduct a canine

sniff[,]" but reasonable suspicion is required if the canine sniff administration

would "prolong[] a traffic stop beyond the time required to complete the stop's

mission." Id. at 550. The articulable, reasonable suspicion must be independent

from the underlying motor vehicle stop to be able to continue detention beyond

the stop's mission to administer a canine sniff. Id. at 536; see also State v.

Nelson, 237 N.J. 540, 554-55 (2019) (finding the officer had reasonable

suspicion to justify the delay based upon the defendant's nervous behavior,

conflicting explanations of his itinerary, a tip from ATF that someone fitting

defendant's description would be transporting controlled dangerous substances,

large bags in the cargo hold, the overwhelming odor of air freshener, and the

defendant's prior record of narcotics arrests).

       A motor vehicle stop can become an investigatory Terry1 stop if

circumstances give rise to an articulable, reasonable suspicion. See Nelson, 237

N.J. at 552. However, to conduct an investigatory stop of a motor vehicle, there


1
    Terry v. Ohio, 392 U.S. 1 (1968).
                                                                         A-5292-18T1
                                        7
must be some objective manifestation the suspect was, or is, involved in criminal

activity. State v. Arthur, 149 N.J. 1, 8 (1997). Independent, articulable, and

reasonable suspicion is necessary because the law "discourage[s] the police from

turning a routine traffic stop into a 'fishing expedition for criminal activity

unrelated to the stop.'" Hornberger v. Am. Broad. Co., 351 N.J. Super. 577, 614

(App. Div. 2002) (citation omitted).

      Stroup had articulable, reasonable suspicion for stopping defendants;

namely, he knew the driver had a suspended license based on an inquiry he

conducted in the recent past. However, there was no articulable, reasonable

suspicion to conduct the canine sniff because there was no nexus between the

motor vehicle violation and drug activity, or any circumstances evidencing

possible drug use, or the presence of drugs. The canine unit's arrival on scene

the prolonged, delayed, and ultimately interrupted the mission of the motor

vehicle stop because Stroup ceased writing the summons, exited his vehicle, and

aided the administration of the canine sniff. The judge's findings in this regard

were not an abuse of discretion.

                                       B.

      Unlawfully obtained evidence is admissible if the State can clearly and

convincingly show the evidence would have been lawfully discovered


                                                                         A-5292-18T1
                                       8
independently of the unlawful means. State v. Maltese, 222 N.J. 525, 552

(2015). The State must prove

            (1) proper, normal and specific investigatory
            procedures would have been pursued in order to
            complete the investigation of the case; (2) under all of
            the surrounding relevant circumstances the pursuit of
            the procedures would have inevitably resulted in the
            discovery of the evidence; and (3) the discovery of the
            evidence through the use of such procedures would
            have occurred wholly independently of the discovery of
            such evidence by unlawful means.

            [State v. Sugar (III), 108 N.J. 151, 156-57 (1987)
            (quoting State v. Sugar (II), 100 N.J. 214, 235 (1985)).]

      To determine whether evidence from an illegal search warrants

suppression, courts focus on whether "the connection between the lawless

conduct of the police and the discovery of the challenged evidence has 'become

so attenuated as to dissipate the taint.'" Wong Sun v. U.S., 371 U.S. 471, 487

(quoting Nardone v. U.S., 308 U.S. 338, 341 (1939)).         The United States

Supreme Court identified three factors courts should consider in that

determination: (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. Brown v. Ill., 422 U.S. 590,

603-04 (1975); see also State v. Lee, 190 N.J. 270, 278 (2007).



                                                                        A-5292-18T1
                                       9
      The New Jersey Supreme Court held, if an officer's initial inquiries reveal

the driver of a car does not have a valid license, an officer is justified in detaining

the driver for a period to issue the summons and has an objective reasonable

basis to detain the car and its occupants to assure the car is driven only by a

properly licensed driver. State v. Hickman, 335 N.J. Super. 623 (App. Div.

2000). Additionally, in instances of driving with a suspended license, "arresting

the driver is consistent with an officer's duty to make certain that the offender

cannot continue to drive. Even if other licensed drivers are present, the severity

of the penalties imposed . . . would ordinarily justify the arrest of a violator[,]"

so long as such arrest would not violate the fundamental constitutional rights

guaranteed to all citizens. State v. Piercer, 136 N.J. 184, 207 (1984).

      Ordering a person out of a car during a traffic stop constitutes a seizure.

State v. Davis, 104 N.J. 490, 498 (1986). A court must balance the driver's

interest in privacy against the State's interest in protecting its police officers.

Pennsylvania v. Mimms, 434 U.S. 106 (1977). The State's interest in protecting

the safety of its officers far outweighs the driver's interests. Id. at 111. This

applies to passengers as well. State v. Conquest, 243 N.J. Super. 528 (1990).

In State v. Smith, the Court held, in some circumstances, with less than

reasonable suspicion, police may order passengers out of a lawfully stopped


                                                                               A-5292-18T1
                                         10
vehicle, if they believe the passengers are engaged in criminal activity and are

armed and dangerous. 134 N.J. 599, 617 (1994).

      Here, police had articulable, reasonable suspicion Lowers' license was

suspended. However, the record lacks any evidence that Stroup intended to do

anything other than issue Lowers a motor vehicle summons. Indeed, the State

offered no testimony from Stroup of the steps he intended to take to assure

Lowers did not drive the car away from the scene after receiving the motor

vehicle violation. No evidence exists that Stroup intended to arrest Lowers for

the motor vehicle violation, or either Lowers or Kent for criminal conduct.

Defendants were removed solely because of the canine sniff, which was

unsupported by reasonable, articulable suspicion.

      Moreover, we disagree with the State's argument that it was unable to

prove inevitable discovery because the motion judge restricted it from making

the argument. As we noted, the State raised the inevitable discovery argument

in summation. However, the judge properly found the argument did not apply

because the State failed to adduce the necessary testimony to support it. For

these reasons, the motion judge correctly concluded the weapon and narcotics

were not inevitably discoverable.




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                                      11
      The remainder of the State's arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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                                      12
