                                NOT FOR PUBLICATION WITHOUT THE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-1547-17T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

RANARD K. BAYARD, a/k/a
RANARD BARARD,

     Defendant-Appellant.
_______________________________

                   Argued November 28, 2018 - Decided January 14, 2019

                   Before Judges Fuentes, Accurso and Vernoia.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 16-10-2918.

                   Margaret R. McLane, Assistant Deputy Public
                   Defender, argued the cause for appellant (Joseph E.
                   Krakora, Public Defender, attorney; Joshua D. Sanders,
                   Assistant Deputy Public Defender, of counsel and on
                   the brief).

                   Jane C. Schuster, Deputy Attorney General, argued the
                   cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Jane C. Schuster, of counsel and on
                   the brief).
PER CURIAM

      Following the denial of his motion to suppress evidence seized in a

warrantless search, defendant Ranard K. Bayard pleaded guilty to third-degree

possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and was sentenced in

accordance with a negotiated agreement to three years' probation conditioned on

service of 180 days in the county jail, forfeiture of $2736 and imposition of

appropriate fines and penalties.1 Defendant appeals from the denial of his

motion to suppress the drugs found in his car. Finding no basis to disturb Judge

Polansky's factual findings or legal conclusions, we affirm.

      At the suppression hearing, the arresting officer testified he stopped

defendant in August 2016 because the car he was driving had a cracked

windshield and tinted front windows. After defendant told the officer his license

was suspended and the officer discovered an outstanding warrant for defendant's

arrest, defendant was arrested. In the course of a search incident to that arrest,

the officer discovered $66 in small bills wrapped in a single black rubber band,

$1900 wrapped in a ball secured by two black rubber bands and $100 in loose

cash in defendant's front pants pocket. Suspicious about the amount of money


1
  Pursuant to the plea agreement, the court subsequently stayed the custodial
portion of defendant's sentence during the pendency of this appeal.
                                                                         A-1547-17T4
                                        2
and the way it was bundled and not satisfied with defendant's explanation for it,

the officer asked to search the car. When defendant refused, the officer called

for a drug dog.

      In the course of conducting an exterior sniff of the car, the dog indicated

she detected the odor of narcotics at the front passenger side door. A search of

the car revealed eight orange bags of cocaine between the driver's seat and the

center console.

      The dog's handler testified to his training and the dog's. The officer

explained he had worked as part of the K9 unit for eighteen months prior to the

search of defendant's car. He began working with the dog, Mai, two months into

his assignment. Both attended the Voorhees K9 training program, receiving

certifications for patrol in June 2015 and narcotics in January 2016. According

to the officer, patrol training included agility work, as well as searching and

tracking. In narcotics training, the dog learned to identify the odors of different

narcotics, including marijuana, cocaine, crack cocaine base, crack, heroin and

methamphetamines.

      The court admitted a "CV" for the officer and Mai, which detailed the

dog's sixteen weeks of patrol training and ten weeks of narcotics training, as

well as monthly in-service training, and noted that she and her handler had been


                                                                          A-1547-17T4
                                        3
evaluated in January 2016 by a supervising specialty K9 trainer of the New

Jersey Police K9 Association and the team deemed suitable for specialty

narcotics detection.   The CV asserted Mai was reliable and consistent in

detecting the specific substances she had been trained to recognize and that in

twenty field sniffs for narcotics, the dog made twelve positive indications and

nine "[f]inds," meaning she had been correct about the presence of drugs

seventy-five percent of the time since January 2016. The court also admitted

the team's detailed training logs from the ten weeks of narcotics training.

      In a detailed opinion delivered from the bench, Judge Polansky

summarized the testimony of the two officers, both of whom he found good,

credible witnesses, who answered questions on direct and cross-examination

fully and undefensively, addressed the case law relied on by the defense, and

methodically stepped through each event from the officer's reasonable suspicion

for the stop through the probable cause for defendant's arrest, the results of the

ensuing search and the officer's reasonable and articulable suspicion for ordering

the canine sniff. 2 The judge next proceeded to analyze whether the State had


2
   Subsequent to the court's consideration of this motion, our Supreme Court
ruled reasonable suspicion for a canine sniff is unnecessary where, as here, the
stop was not prolonged for that purpose, State v. Dunbar, 229 N.J. 521, 540
(2017), aligning our law with the federal standard, see Rodriguez v. United


                                                                         A-1547-17T4
                                        4
sufficiently established the dog's reliability under Florida v. Harris, 568 U.S.

237, 246-47 (2013), to support probable cause to search the car under State v.

Witt, 223 N.J. 409, 450 (2015).

      Judge Polansky cogently and comprehensively addressed the evidence in

the record regarding the dog's reliability, including the fourteen months of

training records, and rejected, based on that evidence and Harris, defendant's

challenge to the canine sniff. Specifically, the judge found in pertinent part:

                  The fact that this dog only gave a positive
            indication in 12 of 20 searches coupled with the training
            information does not suggest any issue that there is a
            tendency of the handler to cue the dog since the dog
            was even in the field not responding in 40 percent of
            the searches. And as the Court in Florida v. Harris
            indicated, positive indications by a dog in the field as
            opposed to in the controlled training setting is not an
            indication of dog unreliability since the mere fact that
            drugs are not found doesn't answer the question, one, as
            to whether drugs had been in the car previously,
            whether someone had touched the door handle or had
            touched the car who had handled drugs or that the drugs
            were sufficiently hidden that despite the positive sniff
            they were not discovered in the vehicle. It's very
            common for drugs to be hidden in hidden compartments
            when being transported in vehicles. So the fact that this
            dog on three occasions in the field indicated positive,
            however, no drugs were found, as recognized in Florida



States, 575 U.S. ____, ____, 135 S. Ct. 1609, 1616 (2015). Defendant was
already under arrest on an outstanding warrant when the arresting officer called
for a canine sniff of defendant's car.
                                                                         A-1547-17T4
                                        5
      v. Harris, is not a good indication that this dog is not
      reliable.

             I also note in Florida v. Harris, unlike here, here
      this dog's certification was current. In Florida v. Harris,
      the dog's certification had expired prior to the time of
      the search.

            ....

             Here, the circumstances giving rise to probable
      cause I do find to have been unforeseeable and
      spontaneous. Officers were not looking for an excuse
      to stop this vehicle. This vehicle was stopped as a result
      of observed violations of motor vehicle laws.
      Additionally, the reasonable articulable suspicion for
      the dog sniff in the first instance did not arise until after
      Mr. Bayard was placed under arrest, number one,
      because he had an outstanding warrant which was not
      — it existed but it was not known by the officer; and,
      two, he had a suspended driver's license. So the fact
      that the breakup of the money that was found and the
      way it was packaged and the significant amount of
      money would certainly not have been something
      officers would have been aware of.               That was
      unforeseeable at the time.

             Since I do find that the various factors including
      the dog sniff rise to the level of probable cause, under
      State v. Witt and State v. Alston, here officers were
      permitted to conduct a search of the vehicle. That
      search uncovered the drugs. Therefore, based upon for
      all those reasons, the motion to suppress will be denied.

Defendant appeals, raising one issue:

      BECAUSE THE STATE FAILED TO ESTABLISH
      THAT THE CANINE IN THIS MATTER WAS

                                                                      A-1547-17T4
                                   6
            CERTIFIED BY A BONA FIDE ORGANIZATION,
            THE ALERT BY THE CANINE FAILS TO
            ESTABLISH    PROBABLE   CAUSE   UNDER
            FLORIDA V. HARRIS.

      We reject defendant's argument because it misstates the standard

established in Harris for establishing a drug detection dog's reliability. The

United States Supreme Court in Harris held:

            [E]vidence of a dog's satisfactory performance in a
            certification or training program can itself provide
            sufficient reason to trust his alert. If a bona fide
            organization has certified a dog after testing his
            reliability in a controlled setting, a court can presume
            (subject to any conflicting evidence offered) that the
            dog's alert provides probable cause to search. The same
            is true, even in the absence of formal certification, if
            the dog has recently and successfully completed a
            training program that evaluated his proficiency in
            locating drugs.

            [Harris, 568 U.S. at 246-47 (emphasis added).]

      Accepting defendant's argument that the State failed to establish the dog's

certification by a bona fide organization would not invalidate this search. The

trial court made extensive findings about the dog's reliability based on her recent

completion of "a training program that evaluated [her] proficiency in locating

drugs," id. at 247, a finding defendant does not challenge on appeal, and one

which we find well supported in the record and thus binding on appeal. See

State v. Hubbard, 222 N.J. 249, 269 (2015) ("[A]n appellate tribunal must defer

                                                                          A-1547-17T4
                                        7
to the factual findings of the trial court when that court has made its findings

based on the testimonial and documentary evidence presented at an evidentiary

hearing.").

      Accordingly, we affirm the denial of defendant's suppression motion and

his conviction and sentence, essentially for the reasons expressed by Judge

Polansky in his thoughtful and thorough opinion from the bench on May 4, 2017,

and remand for vacation of the stay of the custodial portion of defendant's

sentence.

      Affirmed and remanded. We do not retain jurisdiction.




                                                                        A-1547-17T4
                                       8
