                        NOT FOR PUBLICATION WITHOUT THE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-3531-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DEVON KING,

     Defendant-Appellant.
___________________________________

              Argued May 24, 2018 – Decided June 8, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              16-06-0794.

              Rochelle Watson, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Rochelle Watson, of counsel and on the brief).

              Jennifer E. Kmieciak, Deputy Attorney General,
              argued the cause for respondent (Gubir S.
              Grewal, Attorney General, attorney; Jennifer
              E. Kmieciak, of counsel and on the brief).

PER CURIAM

        After the trial judge denied his motion to suppress thirty

small bags of crack cocaine found in a magnetic key holder that
was attached to the wheel well of his car, defendant pled guilty

to third-degree possession of a controlled dangerous substance

(CDS).   The judge sentenced defendant to two years of probation.

     On appeal, defendant raises the following contentions:

          THE EVIDENCE RECOVERED FROM THE MAGNETIC KEY
          HOLDER MUST BE SUPPRESSED BECAUSE IT IS THE
          FRUIT OF AN UNLAWFUL INVESTIGATORY STOP.
          ALTERNATIVELY, THE SEARCH OF THE WHEEL WELL
          OF DEFENDANT'S CAR WITHOUT PROBABLE CAUSE
          VIOLATED   BOTH   THE   STATE  AND   FEDERAL
          CONSTITUTIONS.

          A.   The Investigatory Stop Was Not Supported
               By Reasonable Suspicion.

          B.   Under Both State and Federal Law, The
               Police   Effected   an Unconstitutional
               Search    When    They  Intruded   Into
               Defendant's Wheel Well to Detach the
               Magnetic Key Holder.

          C.   The Opening Of The Magnetic Key Holder
               Constituted   An   Independent   Fourth
               Amendment Search That Was Not Supported
               By Probable Cause.

After reviewing the record in light of the arguments advanced on

appeal, we affirm, but for reasons other than those expressed by

the trial judge.1

     In lieu of presenting testimony at the suppression hearing,

the parties stipulated to the facts set forth in the relevant


1
  See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011)
(stating that an appellate court is "free to affirm the trial
court's decision on grounds different from those relied upon by
the trial court").

                                2                          A-3531-16T3
police report, which the judge read into the record.               On January

14, 2006, three police officers were among a group of officers

assigned to conduct a surveillance of a street because there had

been "several citizen complaints of narcotics activity in that

area[.]"    At approximately 12:30 p.m., the officers saw defendant,

who was "a known drug dealer," getting in and out of a silver

Lexus that was parked on the street.          There were two other men in

the car.

     As they continued to watch defendant, the officers saw an

older   man   approach    the    car   with   "currency    in    his   hand[.]"

Defendant got out of the car and spoke to the man.              Defendant then

went to the driver's side front tire, "reached down and appeared

to be looking for something near the tire."                 Based upon the

officers'     "training    and    experience     with     CDS    arrests     and

investigations, [they] believed the males were engaged in a CDS

transaction."

     Defendant spotted the officers as they began to approach him.

Defendant told the older man "to walk away" and then moved to the

rear of his car.     The officers stopped defendant and the other

man, and directed the other two males to get out of the car.

     One of the officers went to the front of the car and "looked

in the area where [defendant] was looking and recovered a magnetic

key hold[er] attached to the vehicle's wheel well."                The report

                                       3                                A-3531-16T3
explained that a key holder like the one found in the wheel well

was "a common tool used by . . . drug dealers to hide their

narcotics."   An officer opened the container and found thirty

small bags of crack cocaine.      According to the report, the key

holder had to have been placed in the wheel well "when the vehicle

was stopped or it would have fallen . . . while [the car was] in

motion."   The officers then arrested defendant, his suspected

customer, and the two men in the car.

     Under the totality of these circumstances, the judge found

that the police had a reasonable suspicion that defendant was

engaged in a drug transaction and, therefore, they conducted an

appropriate investigatory stop.       Drawing an analogy between the

facts of this case and those involved in our decision in State v.

Jessup, 441 N.J. Super. 386, 388-89 (App. Div. 2015),2 the judge

found that defendant did not have "a reasonable expectation of

privacy" in the key holder because anyone present near the car

could see defendant placing it in, and removing it from, the area

near his front tire, suspect it might contain contraband, and then

easily take it from the wheel well if defendant left the scene.


2
   In Jessup, we upheld the validity of a search for, and seizure
of, a zip-lock bag after the police observed the defendant removing
it from the top of a car's rear tire, taking items from the bag,
and returning the bag to the top of the tire. Id. at 388. The
defendant then gave the items to another man in exchange for money.
Ibid.

                                  4                          A-3531-16T3
Thus, the judge concluded the police properly seized and opened

the key holder without a warrant.

       Although raised by the State in its brief in opposition to

defendant's suppression motion, the judge did not address whether

the search was proper under the "automobile exception" to the

warrant requirement as set forth in the Supreme Court's then-

recent decision in State v. Witt, 223 N.J. 409 (2015), decided

less than four months prior to the January 14, 2016 investigatory

stop in this case.

       In Witt, the 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

State v. Alston, 88 N.J. 211 (1981).      Witt, 223 N.J. at 414.      Thus,

the Court held "that a warrantless search of an automobile was

constitutionally     permissible,   provided    that   the   police    had

probable cause to search the vehicle and that the police action

was prompted by the 'unforeseeability and spontaneity of the

circumstances giving rise to probable case.'"            Ibid. (quoting

Alston, 88 N.J. at 233).

       The Court made clear that the Witt standard was to be "given

prospective application from the date of [its] opinion[,]" and,

therefore, it was in effect at the time of both the January 14,

2016   investigatory   stop   and   the   judge's   September   12,   2016

                                    5                             A-3531-16T3
decision.     Because the reestablished automobile exception to the

warrant requirement plainly justified the police officers' actions

in this case, we need not address the trial judge's determination

that defendant lacked a reasonable expectation of privacy in the

key holder.

     On    appeal,   defendant   argues   that   investigatory   stop   was

improper because the police did not have a reasonable suspicion

that defendant was engaged in criminal activity.         We disagree.

      Our review of a trial judge's decision on a motion to

suppress is limited.      State v. Robinson, 200 N.J. 1, 15 (2009).

In reviewing a motion to suppress evidence, we must uphold the

judge's factual findings, "so long as those findings are supported

by sufficient credible evidence in the record." State v. Rockford,

213 N.J. 424, 440 (2013) (quoting Robinson, 200 N.J. at 15).             We

do not, however, defer to a trial judge's legal conclusions, which

we review de novo.     Ibid.

     It is well settled that the police may lawfully stop a motor

vehicle and detain the motorists in order to investigate suspicious

conduct.    State v. Stovall, 170 N.J. 346, 356 (2002).           Such an

"investigatory stop," also known as a Terry stop, is characterized

by a detention in which the person approached by a police officer

would not reasonably feel free to leave, even though the encounter



                                    6                             A-3531-16T3
falls short of a formal arrest.      Id. at 355-56; see also Terry v.

Ohio, 392 U.S. 1, 19 (1968).

     During a Terry motor vehicle stop, a police officer may detain

individuals   for   a   brief   period,   if   the   stop   was   "based    on

reasonable and articulable suspicion that an 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)).

Whether a reasonable and articulable suspicion exists depends upon

the totality of the circumstances.        State v. Pineiro, 181 N.J. 13,

22 (2004).

     In evaluating the totality of the circumstances surrounding

a Terry stop, a reviewing court must balance "the State's interest

in effective law enforcement against the individual's right to be

protected from unwarranted and/or overbearing police intrusions."

State v. Davis, 104 N.J. 490, 504 (1986).            As the Supreme Court

observed in Davis:

          Such encounters are justified only if the
          evidence, when interpreted in an objectively
          reasonable manner, shows that the encounter
          was preceded by activity that would lead a
          reasonable   police   officer    to  have   an
          articulable suspicion that criminal activity
          had occurred or would shortly occur.        No
          mathematical formula exists for deciding
          whether the totality of circumstances provided
          the   officer    with   an    articulable   or
          particularized suspicion that the individual
          in question was involved in criminal activity.
          Such a determination can be made only through

                                    7                                A-3531-16T3
           a sensitive appraisal of the circumstances in
           each case.

           [Davis, 104 N.J. at 505.]

     In reviewing the "totality of the circumstances," we are also

required   to   "give   weight   to       'the   officer's   knowledge   and

experience' as well as 'rational inferences that could be drawn

from the facts objectively and reasonably viewed in light of the

officer's expertise.'"     State v. Citarella, 154 N.J. 272, 279

(1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).              "The

fact that purely innocent connotations can be ascribed to a

person's actions does not mean that an officer cannot base a

finding of reasonable suspicion on those actions as long as 'a

reasonable person would find the actions are consistent with

guilt.'"   Id. at 279-80 (quoting Arthur, 149 N.J. at 11).

     Applying these principles, we discern no basis for disturbing

the trial judge's determination that based upon the totality of

the circumstances presented to them, the officers had a reasonable

suspicion that defendant and the older man were engaged in a drug

transaction.    As detailed above, the police were in the area

because of citizen complaints of narcotics activity.           During their

surveillance, the officers saw defendant, a known drug dealer,

speak to the man, who was already holding money in his hand.

Defendant then went to the wheel well of his car, which the


                                      8                             A-3531-16T3
officers knew from their experience was a place that dealers stored

their drugs in key holders.       As the officers moved in, defendant

told the other man to leave the area.

     Viewed through the prism of the officers' experience in

conducting   drug   trafficking    investigations,    it   was    entirely

appropriate for the police to reasonably suspect that defendant

was engaging in a narcotics transaction with the other man.

Therefore, the Terry stop of defendant and his vehicle was clearly

appropriate.

     Under Witt, the State must next demonstrate the officers had

probable cause to believe the vehicle contained contraband.             223

N.J. at 414.      Defendant contends the State failed to meet that

burden but again, we disagree.

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

State must show from the totality of the circumstances that 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)). The standard was clearly met here. Again, the police

observed defendant looking for something near the tire of his car

after speaking to the man who had approached him with money in his

hand.     Based     on   the   officers'    experience     in    narcotics

investigations, they reasonably believed that defendant, a known

                                    9                              A-3531-16T3
drug dealer, had stored his drugs in the wheel well area of his

car and was retrieving them to complete the sale.   Thus, there was

more than "a fair probability" that defendant's stash was located

near the front tire of defendant's car, and the police therefore

had probable cause to search there for the suspected contraband.

Ibid.

     As required by Witt, the officers' probable cause arose from

unforeseeable and spontaneous circumstances,   223 N.J. at 414, and

defendant does not contend otherwise.   The police were conducting

a surveillance of the street because they had received citizen

complaints of drug dealing in the area. They were not specifically

looking for either defendant or his car at the time they saw him

engaged in a suspected drug transaction.    Therefore, the search

was fully justified by the automobile exception reestablished in

Witt.

     Finally, defendant argues that even assuming that the police

were permitted to look into the wheel well and take out the key

holder, they were not permitted to open it without a warrant. This

argument also lacks merit.   Indeed, it is well settled "that once

probable cause exists to search . . . a motor vehicle, the police

may search every part of the vehicle, including containers, in

which there is probable cause to believe that the object of the

search may be found."    State v. Esteves, 93 N.J. 498, 508 n.3

                                10                          A-3531-16T3
(1983) (citing United States v. Ross, 456 U.S. 798, 824 (1982));

see also State v. Probasco, 220 N.J. Super. 355, 359 (App. Div.

1987) (citations omitted).   As noted above, the officers stated

in their report that key holders are frequently used by drug

dealers as storage containers for their narcotics, and the key

holder was found in the same area of the car where defendant had

been looking in response to his conversation with his suspected

customer.   Therefore, the officers did not need a warrant to open

the key holder, where they found thirty small bags of crack

cocaine.

    Affirmed.




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