STATE OF NEW JERSEY VS. GARRY FLOYD (17-10-1175, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0696-18T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
GARRY FLOYD,
Defendant-Respondent.
Argued September 19, 2019 – Decided October 22, 2019
Before Judges Alvarez and DeAlmeida.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Middlesex County,
Indictment No. 17-10-1175.
David Michael Liston, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for appellant (Christopher L.C. Kuberiet, Acting
Middlesex County Prosecutor, attorney; David Michael
Liston, of counsel and on the brief).
Adam M. Lustberg argued the cause for respondent
(Lustberg Law Offices, LLC, attorneys; Adam M.
Lustberg, on the brief).
PER CURIAM
On leave granted, the State appeals an August 27, 2018 Law Division
order suppressing drugs seized during a roadside stop from defendant Garry
Floyd's car. As a result of the seizure, defendant was indicted for narcotics
offenses.1 In light of State v. Witt, 223 N.J. 409 (2015), we now reverse the
judge's decision that the automobile exception to the warrant requirement did
not apply to this roadside stop.
The facts are stipulated. 2 In July 2019, Woodbridge Township Police
Detective Jaremczak3 observed a narcotics sale, during which he identified the
seller as an individual he referred to only as S1. Jaremczak conducted
1
The five-count indictment charges defendant with third-degree possession of
heroin, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-
degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); first-degree possession
of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1);
second-degree possession of cocaine with intent to distribute within 500 feet of
public property, N.J.S.A. 2C:35-7.1; and third-degree financial facilitation of
criminal activity, N.J.S.A. 2C:21-25(a).
2
R. 3:5-7(c) requires testimony to be taken "[i]f material facts are disputed . . ."
in a suppression motion. In this case, defendant alleged, and argues on appeal,
that the investigating officer had probable cause before the search was
conducted. He claims that the roadside motor vehicle stop was a ruse for a
warrantless seizure. Testimony and credibility findings would have assisted our
review.
3
The briefs and the transcript of oral argument do not contain the full names of
any of the officers involved.
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surveillance at S1's home over the next few weeks and witnessed a number of
suspected drug transactions. In August, a confidential informant whom
Jaremczak had found reliable in the past, told him that S1 was expecting a large
shipment of cocaine.
Accordingly, Jaremczak continued to surveil S1's home over several days.
On August 18, 2016, Jaremczak saw a white Mercedes parked in front of S1's
residence. The driver went into the house for about twenty minutes, and talked
to S1 for another ten on the front lawn. The driver then returned to the Mercedes
and drove away.
On August 19, Jaremczak and another officer, Bonilla, located S1's
vehicle in Perth Amboy. While observing S1's car, Jaremczak asked Bonilla to
look for the Mercedes, which Bonilla found nearby. The Mercedes travelled to
the location of S1's car, and then left the area in tandem with S1's vehicle.
Jaremczak followed them back to S1's residence, which S1 entered through the
front door.
Meanwhile, the driver of the Mercedes walked down the driveway
alongside the house towards the rear, disappeared, returned, and threw
something in the trunk of the vehicle. Jaremczak did not see what the driver
threw into the trunk. When the car pulled away, Jaremczak and Bonilla
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followed. During the next few miles, the officers witnessed the driver, later
identified as defendant, committing multiple motor vehicle violations, including
operating the Mercedes at seventy miles per hour in a fifty mile per hour zone,
passing other drivers at a high rate of speed from the left- and right-hand lanes,
and tailgating a tractor trailer.
Since no testimony was taken, we do not know why a third officer, a
Detective Grogan, was asked to stop the motor vehicle while it was in Jaremczak
and Bonilla's view. Grogan, as instructed by Jaremczak, ran defendant's name
through his computer, ascertaining that defendant's license was suspended and
that he had a motor vehicle history of driving while suspended. Also at
Jaremczak's instruction, Grogan arrested defendant. Defendant was driven to
the Woodbridge police headquarters while the officers remained at the scene.
Grogan had been traveling with his drug detection dog Blade, whom he
brought out to examine the exterior of the Mercedes for narcotics. Blade alerted
Grogan to the presence of contraband in the trunk, which was then searched.
Jaremczak seized two yellow ShopRite bags, one inside the other,
containing a large clear bag holding approximately 495 grams of cocaine, from
the trunk. A brown Gucci sunglasses case containing a small clear bag holding
0.9 grams of cocaine, and a small yellow bag holding 1.5 grams of powder
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heroin were taken from the far left and right areas of the trunk. Two of the three
pieces of mail in the trunk were addressed to defendant.
Grogan discovered a small blue bag of 0.3 grams of marijuana in the rear
seat. Defendant and another person were listed as the owners of the Mercedes
on documents in the glove compartment. Police also seized three pieces of mail
addressed to defendant as well as a mailing box with defendant's name on it from
the rear passenger floor. The Mercedes was towed to the Woodbridge Police
Department impound yard, and complaints were filed against defendant.
In his oral decision, the Law Division judge seemed to say that the
investigation before the sniff provided facts sufficient for an anticipatory
warrant. At a minimum, he said:
there was at least probable cause developed to believe
that there was drug dealing activity engaged in by S1 as
a result of the initial arrest of the person who S1 sold
drugs to back in July 2016, which led to an
investigation and surveillance over the next couple of
weeks of S1 . . . .
The judge also found that once the dog sniff was positive, the officers had an
obligation to obtain a search warrant. The car was secured and could readily
have been towed before the search, as was done after. Thus he opined that since
the officers had taken defendant into custody, and had probable cause to search
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the vehicle, they should have obtained a warrant, making the roadside search
illegal.
On appeal, the State raises one issue for our consideration:
THE TRIAL COURT ERRONEOUSLY
SUPPRESSED EVIDENCE FOUND IN
DEFENDANT'S CAR FOLLOWING A VALID AND
UNFORESEEABLE MOTOR VEHICLE STOP AND
A CANINE ALERT TO NARCOT[IC]S IN THE
TRUNK OF DEFENDANT'S CAR.
In light of Witt, and the law that has since developed, most notably, State
v. Rodriguez, 459 N.J. Super. 13 (App. Div. 2019), the search of defendant's
vehicle was proper. We examine this legal issue de novo. See State v. Gamble,
218 N.J. 412, 425 (2014); State v. Rockford, 213 N.J. 424, 440 (2013); State v.
Gandhi, 201 N.J. 161, 176 (2010). Here, because the facts, incomplete as they
may be, were stipulated, we only address whether the judge erred as a matter of
law and do not consider whether his factual findings were supported by the
record. See Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 50 (2012) (citing
Gilhooley v. Cty. of Union, 164 N.J. 533, 545 (2000)).
It bears noting that probable cause did not exist at the point the officer
saw defendant throw an unknown object into the back of the Mercedes. That
the confidential informant claimed a substantial amount of narcotics would be
delivered to S1 did not establish probable cause sufficient for the issuance of a
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warrant, much less an anticipatory warrant. No date, time, manner of delivery,
or other details were included in the tip. The confidential informant did not
mention defendant's name. Hence it was not until the sniff took place that
probable cause was developed.
It is black-letter law that the officers could lawfully deploy the canine. A
sniff "does not transform an otherwise lawful seizure into a search that triggers
constitutional protections." State v. Dunbar, 229 N.J. 521, 538 (2017). "If an
officer has articulable reasonable suspicion independent from the reason for the
traffic stop that a suspect possesses narcotics, the officer may continue a
detention to administer a canine sniff." Id. at 540. So long as the sniff does not
unduly extend the stop, it is permissible.
The officers lawfully stopped defendant because of his motor vehicle
infractions, but had only an uncorroborated hunch that defendant possessed
drugs. Once they stopped him, they were entitled to deploy the canine because
they had a reasonable, articulable suspicion — but not probable cause — that
defendant had narcotics in the trunk. It was not until the dog responded that
probable cause arose.
Pursuant to Witt, officers may now conduct a warrantless search during a
roadside stop "in situations where: (1) the police have probable cause to believe
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the vehicle contains evidence of a criminal offense; and (2) the circumstances
giving rise to probable cause are unforeseeable and spontaneous." Rodriguez,
459 N.J. Super. at 22 (citing Witt, 223 N.J. at 447-48). Applying the Witt
standard, this automobile search passes constitutional muster.
The circumstances that gave rise to the sniff were "unforeseeable and
spontaneous." Had defendant not violated the motor vehicle laws, the officers
could not have stopped him. Although the officers suspected defendant of
involvement in narcotics trafficking with S1, on this record, they had no specific
information regarding his role or the contents of the plastic bag — they only had
information regarding S1 and a mere hunch about defendant.
The item defendant placed in his trunk could have been innocuous. Not
all objects even a known drug dealer obtains from a suspected drug dealer are
going to be contraband. The bag could have contained anything. Although the
officers had information regarding the anticipated delivery of a substantial
amount of drugs to S1, they knew nothing about defendant's identity or his role
in the transaction until after his arrest. Furthermore, defendant was taking the
package from S1's home — not delivering it.
The officers were unexpectedly able to lawfully stop defendant; once they
stopped defendant, the officers were entitled to conduct a canine sniff. Once
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they received a positive response to the sniff, Witt did not require them to obtain
a warrant and impound the vehicle before searching it. These circumstances are
not the type of "fake exigencies" discouraged by the Witt Court. Rodriguez
explains:
Viewed in its proper context, the Court's reference in
Witt to "fake exigencies" signifies that the police
cannot rely upon a contrived justification to search an
impounded vehicle without a warrant merely because
the vehicle could have been searched earlier at the
roadside. The whole tenor of the Witt opinion is to
eliminate the need for police to establish "exigencies"
at the roadside to proceed with a warrantless search.
Instead, the Court readopted a bright-line rule, one that
is predicated on the requirements of spontaneity and
probable cause.
[Rodriguez, 459 N.J. Super. at 24.]
That defendant was in custody does not impact the analysis. "[T]he
automobile exception is not nullified" because a suspect is under arrest.
Rodriguez, 459 N.J. Super. at 22. Witt and Dunbar control, and make this
warrantless roadside search proper.
Reversed and remanded. We do not retain jurisdiction.
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