K-9 Sniffs and the NJ Automobile Exception
July 15, 2022 - Posted by Ed Esposito
The Appellate Division recently published a decision in State v. Kyle A. Smart, Docket No. A- 2334-21 (App. Div. 2022), which involved the warrantless search of vehicle under the automobile exception to pursuant to State v. Witt, 223 N.J. 409, 450 (2015). The Court in its decision agreed the police could not have secured a warrant before the vehicle was stopped and, therefore, determined that the police did not "sit" on probable cause. However, the Court did disagree with the State's argument that probable cause under the circumstances was unforeseeable and spontaneous within the meaning of Witt.
The circumstances leading to the search began when police conducted an investigatory stop after surveilling the vehicle for more than an hour, and after they had developed information that front seat passenger was engaged in unlawful drug activity. The Court in this case determined that the police did have reasonable articulable suspicion of criminal activity, which did arise before to the stop and ultimately justified their investigative detention (motor vehicle stop). Specifically, the Court noted that the “police suspected [the] defendant of engaging in drug activity based on confidential sources and their observations during their continuous, same-day surveillance. [The] police also knew [the] defendant had a criminal history, including drug arrests and convictions for weapons offenses.” Smart (App. Div. 2022).
Once the stop was made, an officer asked defendant who was a passenger in the vehicle to exit and a subsequent pat-down revealed no weapons or contraband. After the defendant was read his Miranda rights, he declined to reveal the reason for one of the stops made while the police were conducting their surveillance. He also refused to identify anyone with whom he met. The defendant claimed he simply "stopped to 'see his people.'" Ibid. The driver refused consent to search the vehicle but stated "nothing in the car was hers." Ibid. The police then requested a K-9 unit and also asked the driver to exit the vehicle and to remove the child seated in the vehicle.
About twenty minutes after police stopped the vehicle and consent to search was denied, the K-9 unit arrived and conducted an exterior sniff of the vehicle. The K-9 made a positive indication and immediately after the police searched the vehicle. During the search the police located over 400 folds of heroin, an unloaded handgun magazine and a digital scale from inside a backpack located on the front passenger's side floor. The police also located a loaded handgun in the center console and $1,600 in cash from inside a purse on the rear seat. The defendant (passenger) was arrested and charged with numerous drug and weapons offenses while the driver and her child were permitted to leave the scene in the vehicle.
In its decision, the Court stated it was “undisputed that police lacked probable cause to search the [vehicle] prior to encountering defendant…” and that “…probable cause [did not] arise during the one-hour-and-seventeen-minute surveillance.” Ibid. According to the Court, “[p]robable cause did not arise until the K-9 unit responded to the scene and the dog positively alerted for the presence of narcotics in the car.” Ibid. The Court concluded that “those circumstances were not unforeseeable and spontaneous under Witt and, as such, the automobile exception to the warrant requirement did not apply to this warrantless search.” Ibid.
In their closing paragraph, the Court said “we are not convinced the canine's alert for the presence of narcotics - which gave rise to probable cause in this case - falls within the ambit of circumstances the Witt Court contemplated as "unforeseeable and spontaneous" under the automobile exception. When the officers' sensory perceptions failed to confirm their suspicions of drug activity following the stop of the [vehicle], police summoned the K-9 unit for the sole purpose of developing probable cause. That investigative tool, although validly employed under [State v.] Dunbar and [State v.] Nelson, nonetheless fails under Witt, because the use of the K-9 unit under the circumstances presented here did not result in the spontaneous and unforeseeable development of probable cause; it was simply another step in the search for drugs that caused the stop in the first place. Thus, when probable cause sufficient to support a search of the vehicle developed, police at that juncture were required to seek a warrant. We conclude their failure to do so rendered the ensuing search fatally defective.”
The specific circumstances before and during a motor vehicle stop that lead up to a K-9 sniff impact the “spontaneous and unforeseeable” aspect of the development of probable cause that is required to conduct a warrantless automobile exception search. Going forward, officers should consult with their appropriate legal advisors for guidance, on a case-by-case basis, and should not rely solely on a positive K-9 alert to automatically search a vehicle without a warrant.
The Appellate Division recently published a decision in State v. Kyle A. Smart, Docket No. A- 2334-21 (App. Div. 2022), which involved the warrantless search of vehicle under the automobile exception to pursuant to State v. Witt, 223 N.J. 409, 450 (2015). The Court in its decision agreed the police could not have secured a warrant before the vehicle was stopped and, therefore, determined that the police did not "sit" on probable cause. However, the Court did disagree with the State's argument that probable cause under the circumstances was unforeseeable and spontaneous within the meaning of Witt.
The circumstances leading to the search began when police conducted an investigatory stop after surveilling the vehicle for more than an hour, and after they had developed information that front seat passenger was engaged in unlawful drug activity. The Court in this case determined that the police did have reasonable articulable suspicion of criminal activity, which did arise before to the stop and ultimately justified their investigative detention (motor vehicle stop). Specifically, the Court noted that the “police suspected [the] defendant of engaging in drug activity based on confidential sources and their observations during their continuous, same-day surveillance. [The] police also knew [the] defendant had a criminal history, including drug arrests and convictions for weapons offenses.” Smart (App. Div. 2022).
Once the stop was made, an officer asked defendant who was a passenger in the vehicle to exit and a subsequent pat-down revealed no weapons or contraband. After the defendant was read his Miranda rights, he declined to reveal the reason for one of the stops made while the police were conducting their surveillance. He also refused to identify anyone with whom he met. The defendant claimed he simply "stopped to 'see his people.'" Ibid. The driver refused consent to search the vehicle but stated "nothing in the car was hers." Ibid. The police then requested a K-9 unit and also asked the driver to exit the vehicle and to remove the child seated in the vehicle.
About twenty minutes after police stopped the vehicle and consent to search was denied, the K-9 unit arrived and conducted an exterior sniff of the vehicle. The K-9 made a positive indication and immediately after the police searched the vehicle. During the search the police located over 400 folds of heroin, an unloaded handgun magazine and a digital scale from inside a backpack located on the front passenger's side floor. The police also located a loaded handgun in the center console and $1,600 in cash from inside a purse on the rear seat. The defendant (passenger) was arrested and charged with numerous drug and weapons offenses while the driver and her child were permitted to leave the scene in the vehicle.
In its decision, the Court stated it was “undisputed that police lacked probable cause to search the [vehicle] prior to encountering defendant…” and that “…probable cause [did not] arise during the one-hour-and-seventeen-minute surveillance.” Ibid. According to the Court, “[p]robable cause did not arise until the K-9 unit responded to the scene and the dog positively alerted for the presence of narcotics in the car.” Ibid. The Court concluded that “those circumstances were not unforeseeable and spontaneous under Witt and, as such, the automobile exception to the warrant requirement did not apply to this warrantless search.” Ibid.
In their closing paragraph, the Court said “we are not convinced the canine's alert for the presence of narcotics - which gave rise to probable cause in this case - falls within the ambit of circumstances the Witt Court contemplated as "unforeseeable and spontaneous" under the automobile exception. When the officers' sensory perceptions failed to confirm their suspicions of drug activity following the stop of the [vehicle], police summoned the K-9 unit for the sole purpose of developing probable cause. That investigative tool, although validly employed under [State v.] Dunbar and [State v.] Nelson, nonetheless fails under Witt, because the use of the K-9 unit under the circumstances presented here did not result in the spontaneous and unforeseeable development of probable cause; it was simply another step in the search for drugs that caused the stop in the first place. Thus, when probable cause sufficient to support a search of the vehicle developed, police at that juncture were required to seek a warrant. We conclude their failure to do so rendered the ensuing search fatally defective.”
The specific circumstances before and during a motor vehicle stop that lead up to a K-9 sniff impact the “spontaneous and unforeseeable” aspect of the development of probable cause that is required to conduct a warrantless automobile exception search. Going forward, officers should consult with their appropriate legal advisors for guidance, on a case-by-case basis, and should not rely solely on a positive K-9 alert to automatically search a vehicle without a warrant.