STATE OF NEW JERSEY VS. JAMES J. KERNS (17-01-0050 AND 17-01-0051, WARREN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-4731-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES J. KERNS, a/k/a JAMES J.
KERNS II, JAMES J. KERNS III,
JAMES J. KERNS 3RD, JAMES
JOHNLITY KERNS, and MILLS,

     Defendant-Appellant.
_____________________________

                   Argued December 9, 2019  Decided December 30, 2020

                   Before Judges Messano, Ostrer and Susswein
                   (Judge Ostrer concurring).

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Warren County, Indictment Nos. 17-01-0050
                   and 17-01-0051.

                   Emma R. Moore, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Emma R. Moore, of counsel
                   and on the briefs).
            Adam D. Klein, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Adam D. Klein, of counsel and on
            the brief).

PER CURIAM

      In this consolidated appeal, James J. Kerns contends the trial court should

have granted his motions to suppress drugs that police seized from his person

on two separate occasions. After evidentiary hearings, the court denied the

motions, and Kerns pleaded guilty to two counts of third-degree possession of a

controlled dangerous substance (CDS), one count from each incident. The court

imposed concurrent terms of forty-two months.

      In the first incident, Kerns was a passenger in a car that police stopped for

motor vehicle violations.    Kerns contends police unlawfully asked him to

identify himself. Kerns provided false names to police, who arrested him for

hindering. Incident to his arrest, police seized heroin from his person.1 Kerns

contends the police's unlawful inquiry tainted the seizure that followed. He

argues:

            BECAUSE MR. KERNS WAS MERELY A
            PASSENGER IN A CAR STOPPED FOR A TRAFFIC
            VIOLATION, TROOPER MURRAY DID NOT HAVE
            AUTHORITY TO ASK FOR HIS IDENTIFICATION.

1
  This incident led to Indictment No. 17-01-0050, charging one count of third-
degree possession of CDS, N.J.S.A. 2C:35-10(a)(1).
                                                                           A-4731-17T1
                                        2
            BECAUSE    THIS  CREDENTIALS    CHECK
            VIOLATED ARTICLE 1 PARAGRAPH 7 OF THE
            NEW JERSEY CONSTITUTION, THE EVIDENCE
            SUBSEQUENTLY     SEIZED    MUST    BE
            SUPPRESSED.

      After Kerns's release on bail, a cooperating witness engaged in two

controlled buys from him. Then, tipped off that Kerns was about to travel to

Newark to buy drugs, police surveilled Kerns make the round-trip from

Phillipsburg. On his return, police arrested Kerns and, incident to the arrest,

seized    more      heroin    and     MDMA         (which     is    short     for

methylenedioxymethamphetamine, and popularly known as "Ecstasy").2 Kerns

contends those drugs should have been suppressed because the controlled buys

did not create probable cause for the arrest; and even if they did initially, the

probable cause had become stale. He argues:

            BECAUSE THE STATE DID NOT ESTABLISH
            THAT THE OFFICERS HAD PROBABLE CAUSE
            TO ARREST MR. KERNS ON SEPTEMBER 22,
            2016, THE EVIDENCE OBTAINED IN THE


2
  This incident led to Indictment No. 17-01-0051, consisting of eleven counts
charging offenses related to the two controlled buys as well as the seizure after
Kerns's round-trip to Newark. The indictment included four counts of third -
degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); four counts of third-degree
possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1), -5(b)(3); two
counts of third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1), -5(b)(3); and
one count of second-degree distribution of CDS within 500 feet of public
housing, N.J.S.A. 2C:35-7.1(a).
                                                                         A-4731-17T1
                                       3
            SEARCH INCIDENT TO THAT ARREST MUST BE
            SUPPRESSED.

            A.   The Police's      Limited    Knowledge     of   the
            Controlled Buys.

            B.   The Gap Between the Controlled Buys and
            Eventual Arrest.

      Having reviewed Kerns's arguments in light of the record and applicable

principles of law, we reverse the first order and affirm the second. Only the

motion regarding the first indictment merits extended discussion.

                                       I.

                                       A.

      We defer to the trial court's limited factual findings regarding the first

incident, because they were supported by substantial credible evidence in the

record  the testimony of New Jersey State Trooper Robert Murray, the sole

witness at the suppression hearing, and a motor vehicle recording of the traffic

stop. See State v. Elders, 192 N.J. 224, 243-44 (2007) (describing standard of

review of suppression orders).     However, relying on the undisputed video

record, we are constrained to make additional findings regarding facts that the

trial court did not address. Cf. State v. S.S., 229 N.J. 360, 380 (2017) (stating

appellate court may not substitute its findings for those the trial court mad e

based on video recording).

                                                                         A-4731-17T1
                                       4
      The trial court found that Trooper Murray and his partner, Trooper J.

Almeida, observed a vehicle with Pennsylvania tags cross the free bridge into

Phillipsburg shortly after midnight. One headlight was out, and the car was

going 25 mph in a 15-mph zone. During the traffic stop, a trooper asked Kerns,

the front seat passenger, for his identification. The court found: "When asked

for his identification, defendant stated that he did not have his driver's li cense

on his person and proceeded to provide Trooper Murray with several false names

and a false DOB." The troopers checked those names in the computer system

and "[n]o results were produced." Trooper Murray then ordered Kerns to exit

the vehicle and arrested him for hindering an investigation, N.J.S.A. 2C:29-3(b).

An initial search of his person uncovered nothing. The trooper transported

Kerns to the State Police station. When he removed Kerns from his police

vehicle, Kerns held in his hands seventy-eight wax folds of suspected heroin.

      The court held, as a matter of law, that Kerns was free not to answer the

trooper's question.    In the court's view, Kerns himself prompted further

questioning and his ultimate arrest by providing false names. Citing State v.

Sirianni, 347 N.J. Super. 382, 387 (App. Div. 2002), the court evidently

concluded that the troopers' encounter with Kerns was a field inquiry;

consequently, the police did not need reasonable grounds or suspicion, and


                                                                           A-4731-17T1
                                        5
Kerns was free not to answer. Id. at 388-89. On appeal, the State takes that

same position, as its first line of defense of the court's order.

      We owe no deference to the trial court's legal conclusion, State v. Watts,

223 N.J. 503, 516 (2015), which mischaracterized the trooper's encounter with

Kerns. In Sirianni, a police officer approached a person in a parked car and

asked for identification. The person was not detained; he was free not to answer;

and the police inquiry did not convert what was a field inquiry into a detention.

Sirianni, 347 N.J. Super. at 391. By contrast, Kerns and the driver were already

seized, because "[m]otor vehicle stops are seizures for Fourth Amendment

purposes," State v. Atwood, 232 N.J. 433, 444 (2018), and during a traffic stop,

"the passenger, like the driver" is seized, State v. Sloane, 193 N.J. 423, 426

(2008). Kerns was not free to leave. As the Court observed in State v. Rosario,

229 N.J. 263, 273 (2017), "[i]t defies typical human experience to believe that

one who is ordered to produce identification [when the officer has boxed in a

person's vehicle] would feel free to leave."

      The video makes clear that Kerns was commanded to produce

identification documents and, because he was unable to do that, to state his name

and date of birth. When an officer asks a person "if he ha[s] 'any identification

on [him],'" the United States Supreme Court understood that "as a request to


                                                                         A-4731-17T1
                                         6
produce a driver's license or some other form of written identification." Hiibel

v. Sixth Judicial Dist. Ct. of Nevada, Humboldt Cty., 542 U.S. 177, 181 (2004)

(second alteration in original). Although the trial court found that police "asked"

Kerns for identification, Kerns was not free to refuse, just as he was not free to

leave. That Kerns was seized is one reason we conclude, as a legal matter, that

an objectively reasonable person under the circumstances would not feel fre e to

refuse. See State v. Gibson, 218 N.J. 277, 291-92 (2014) (stating that a field

inquiry involves questioning that is not "harassing, overbearing, or accusatory

in nature," and the person is free to refuse and terminate the encounter, but an

investigative stop is one where a reasonable person would not feel free to leave).

But, the trooper left nothing to doubt. The video recorded Trooper Murray ask

Kerns if he had identification. Kerns answered inaudibly, Trooper Murray asked

for clarification, and then commanded, "Give the trooper [referring to Trooper

Almeida] your name." 3

      The video recording reflects that in the beginning of the stop, Trooper

Murray informed the driver that he was pulled over because his headlight was



3
  We may not substitute our assessment of video recordings for the trial court's,
see S.S., 229 N.J. at 380, and we do not do so here. The trial judge did not make
findings regarding this exchange or others we address, or expressly refer to
them.
                                                                           A-4731-17T1
                                        7
not functioning, and he went 25 mph in a 15-mph zone. The trooper asked the

driver for his license and registration. He produced the first, but could not locate

the second. Trooper Murray assured the driver that he could confirm the driver's

ownership by running the plates; and cordially stated that the driver would likely

locate the registration after the police left. 4

      While Trooper Murray engaged with the driver, Trooper Almeida

continued to question Kerns to ascertain his identity. Both troopers returned to

the patrol car to look up the name Kerns gave, and finding nothing, Trooper

Murray walked back to Kerns to ask for clarification. The trooper returned to

the patrol car a second time, and again could find no match. The troopers walked

back to Kerns, who clarified the spelling of his name, and Trooper Murray asked

why Kerns had not done so earlier. The troopers returned to the patrol car a

third time. By that point, nearly fifteen minutes had elapsed since the stop

began. The first video ends with both troopers in their vehicle.5 By that point,



4
   In its written opinion, the trial court recited that the State asserted, and
defendant denied, that the driver "was unable to provide proof of ownership."
The court did not expressly decide that dispute, and the video recording does
not clearly resolve it.
5
  The dvd included in the appendix on appeal includes a second video recording,
which apparently picks up after the first. However, the State expressly
introduced only the first at the hearing.
                                                                            A-4731-17T1
                                           8
no one wrote out traffic summonses for the driver. Trooper Murray testified that

after a fourth encounter with Kerns regarding his identity, he arrested Kerns for

hindering.

                                       B.

      The question is: were police entitled to require Kerns to identify himself

during the traffic stop for minor vehicle violations, and then continue to detain

him and the driver  after the police were done investigating the motor vehicle

violations that precipitated the stop  while they tried to confirm that Kerns

was who he said he was. To answer that question, we must review fundamental

principles governing the permissible scope of traffic stops.

      "'[T]he ultimate touchstone of the Fourth Amendment is reasonableness.'"

State v. Terry, 232 N.J. 218, 231 (2018) (internal quotation marks omitted)

(quoting Riley v. California, 573 U.S. 373, 381-82 (2014)). Based on observed

motor vehicle violations, the police may stop a vehicle, detaining the passenger

as well as the driver.     Sloane, 193 N.J. at 432.       But, in assessing the

reasonableness of a police intrusion, a court must consider not only "whether

the officer's action was justified at its inception," but also "whether it was

reasonably related in scope to the circumstances which justified the interf erence

in the first place." Terry v. Ohio, 392 U.S. 1, 20 (1968). Put another way, a


                                                                          A-4731-17T1
                                        9
court must determine whether a stop, valid in its inception, "was sufficiently

limited in scope and duration to remain within the bounds authorized . . . ." State

v. Dickey, 152 N.J. 468, 471-72 (1998).

      The New Jersey Supreme Court has approved a variety of police intrusions

or actions that fall within the scope of a traffic stop, and therefore require no

additional justification beyond the justification for the stop itself. Police may

check the driver's license, determine whether there are warrants for the driver's

arrest, and inspect the registration and proof of insurance. State v. Dunbar, 229

N.J. 521, 533 (2017) (citing Rodriguez v. United States, 575 U.S. 348, 355

(2015)).   These are "'ordinary inquiries incident to [the traffic] stop.'"

Rodriguez, 575 U.S. at 355 (quoting Illinois v. Caballes, 543 U.S. 405, 408

(2005)); Dunbar, 229 N.J. at 533. "These checks serve the same objective as

enforcement of the traffic code: ensuring that vehicles on the road are operated

safely and responsibly." Rodriguez, 575 U.S. at 350.

      Within the scope of a traffic stop, police may also ask for identification

from a passenger who proposes to drive a vehicle after the driver's arrest, to

assure he is a licensed driver. Sloane, 193 N.J. at 432. Police may also check

the National Crime Information Center database for records pertaining to that

passenger, "when there is a basis for police to focus on the passenger," the


                                                                           A-4731-17T1
                                       10
inquiry does not "unreasonably prolong the stop," and accessing the NCIC

database was within the scope of the traffic stop. Id. at 426, 438-39.6

      Actions to assure an officer's safety during the traffic stop may also fall

within the scope of the original traffic-related stop. "Traffic stops are 'especially

fraught with danger to police officers.'" Rodriguez, 575 U.S. at 356 (quoting

Arizona v. Johnson, 555 U.S. 323, 330 (2009)). Thus, an officer may require a

driver to alight a vehicle without any additional showing of suspicion of

wrongdoing, or threat to the officer's safety. Pennsylvania v. Mimms, 434 U.S.

106, 110-11 (1977); see also State v. Smith, 134 N.J. 599, 618 (1994). As a

matter of federal constitutional law, that rule also applies to passengers.

Maryland v. Wilson, 519 U.S. 408, 415 (1997).

      However, ordering a passenger to exit a vehicle must meet an additional

test under our State Constitution. Smith, 134 N.J. at 618. Although the safety

interest "remains the same whether the driver or the passenger is involved,"

requiring a passenger to exit the vehicle imposes a "greater intrusion on the



6
    As we discuss below, the United States Supreme Court made clear in
Rodriguez that the Fourth Amendment does not tolerate even a de minimis
prolongation of a stop for police to engage in activity that neither falls within
the traffic-related mission of the stop nor protects the safety of officers while
they pursue that mission, and is not independently supported by reasonable and
articulable suspicion of wrongdoing. 575 U.S. at 350, 354-57.
                                                                             A-4731-17T1
                                        11
passenger's liberty." Id. at 615. That is because the passenger apparently has

done nothing wrong, just happens to be associated with the errant driver, and

may have a "legitimate expectation that no further inconvenience will be

occasioned by any intrusions beyond the delay caused by the lawful stop." Ibid.

To require a passenger to exit, "an officer must be able to point to specific and

articulable facts that would warrant heightened caution to justify ordering the

occupants to step out of a vehicle detained for a traffic violation." Id. at 618.

      Police inquiries or intrusions that go beyond the officer's "traffic mission"

or the officer's safety while pursuing that mission  that are instead focused on

general crime detection  must meet a different standard. They must not

prolong the time it takes to effectuate the stop's mission, or they must be

independently supported by reasonable and articulable suspicion of wrongdoing.

      If pursuit of traffic or safety-related inquiries or intrusions give rise to

suspicions of wrongdoing unrelated to the traffic offense, "an officer may

broaden [the] inquiry and satisfy those suspicions." Dickey, 152 N.J. at 479-80

(alteration in original) (quoting United States v. Johnson, 58 F.3d 356, 357-58

(8th Cir. 1995)). The additional inquiries are grounded not in the probable cause

of the initial traffic violation; rather, they are grounded in the new suspicions




                                                                           A-4731-17T1
                                       12
aroused by, or while conducting, the lawful traffic-related or safety-related

inquiries. Id. at 480.

      Absent such new suspicions, police intrusions unrelated to the traffic-

mission are temporally circumscribed. "[T]he Fourth Amendment tolerate[s]

certain unrelated investigations that d[o] not lengthen the roadside detention."

Rodriguez, 575 U.S. at 354. "A seizure justified only by a police-observed

traffic violation . . . 'become[s] unlawful if it is prolonged beyond the time

reasonably required to complete th[e] mission' of issuing a ticket for the

violation." Id. at 350 (quoting Caballes, 543 U.S. at 407). "An officer . . . may

conduct certain unrelated checks during an otherwise lawful traffic stop. But

. . . he may not do so in a way that prolongs the stop, absent the reasonable

suspicion ordinarily demanded to justify detaining an individual." Id. at 355.

      For example, a dog sniff "is a measure aimed at 'detect[ing] evidence of

ordinary criminal wrongdoing'" and "is not an ordinary incident of a traffic

stop." Id. at 355-56 (alteration in original) (quoting Indianapolis v. Edmond,

531 U.S. 32, 40-41 (2000)). Police may not proceed along such an investigatory

avenue if "conducting the sniff prolongs  i.e. adds time to  the stop." Id. at

357 (internal quotation marks omitted).




                                                                         A-4731-17T1
                                      13
      A stop is prolonged if it is extended "'beyond the time reasonably required

to complete th[e] [traffic] mission.'" Id. at 354-55 (first alteration in original)

(quoting Caballes, 543 U.S. at 407). The chronology or sequence of police

actions is not determinative. Police may not justify non-traffic-related inquiries

by waiting to write a traffic ticket last. "The critical question . . . is not whether

the dog sniff [or other general crime-detection inquiry] occurs before or after

the officer issues a ticket." Id. at 357. The issue is whether the stop is prolonged.

Ibid. In contrast to safety-related intrusions, there is no de minimis exception

for an "endeavor to detect crime in general or drug trafficking in particular." Id.

at 356-57; see also United States v. Clark, 902 F.3d 404, 410 (3d Cir. 2018).

      Although Rodriguez involved a traffic stop that may have been prolonged

by a dog sniff, the Court relied in part on its decision in Johnson. Rodriguez,

575 U.S. at 354-55 (citing Johnson, 555 U.S. at 327-28). In Johnson, police

questioned a passenger about "matters unrelated to the justification for the traffic

stop." Johnson, 555 U.S. at 333. The Court held that "[a]n officer's inquiries

into matters unrelated to the justification for the traffic stop . . . do not convert

the encounter into something other than a lawful seizure, so long as thos e

inquiries do not measurably extend the duration of the stop." Ibid.




                                                                              A-4731-17T1
                                         14
      Courts have since applied Rodriguez to stops prolonged by off-mission

questioning of a passenger's identity, like that at issue here. In United States v.

Landeros, 913 F.3d 862 (9th Cir. 2019), and in Clark, 902 F.3d at 406, the courts

of appeal held that police unlawfully prolonged a traffic stop to inquire about a

passenger's identity.

      In Landeros, a police officer with authority to enforce Arizona and tribal

law pulled over a speeding car. 913 F.3d at 864. Upon request, the driver

provided identification. Ibid. The officer then asked for identification from two

women in the back seat. Ibid. The officer had a reasonable suspicion they were

violating a non-traffic law, because they appeared to be minors, and they were

out past a tribal curfew. Id. at 864, 867.

      However, no reasonable and articulable suspicion of a non-traffic offense

supported the officer's command that Landeros, the front-seat passenger,

produce his identification. Id. at 868. Landeros refused repeated commands to

identify himself, and then refused repeated commands that he exit the car for

being non-compliant. Ibid. Several minutes passed before Landeros finally

exited the car, revealing two open beer bottles, pocket knives, and a machete on

the floor. Ibid. Police arrested him for failing to provide his true name and

refusing to comply with the police officers' direction. Ibid. Police also charged


                                                                           A-4731-17T1
                                       15
him with possessing an open container. Incident to arrest, police seized another

knife and some bullets from his pockets. Ibid. Landeros was indicted for

possession of ammunition by a convicted felon. Ibid.

      The court reversed the trial court's order denying Landeros's suppression

motion. Two holdings of the court pertain to the case before us. First, the court

held that demanding the passenger's identification fell outside the traffic-related

mission that gave rise to the stop and was unrelated to protecting officer safety.

Id. at 868. Regarding enforcement of motor vehicle laws, the court said, "A

demand for a passenger's identification is not part of the mission of a traffic

stop. . . . The identity of a passenger . . . will ordinarily have no relation to a

driver's safe operation of a vehicle." Ibid. Regarding officer safety, the court

stated, "[K]nowing Landeros's name would not have made the officers any

safer." Ibid. Rather, the inquiries extended the stop, and prolonged the officers'

exposure to him, which "was, if anything, 'inversely related to officer safety.'"

Ibid. (quoting United States v. Evans, 786 F.3d 779, 787 (9th Cir. 2015)).

      Second, because the identification demands fell outside the scope of the

traffic stop, the court held that they could not prolong the stop absent

independent reasonable suspicion. Ibid. The court found that the inquiries

prolonged the stop beyond what was reasonably necessary to fulfill the traffic-


                                                                           A-4731-17T1
                                       16
related mission. Ibid. And, the court rejected the government's argument "that

Landeros's refusal to identify himself 'provided reasonable suspicion of the

additional offenses of failure to provide identification and failure to comply with

law enforcement orders,'" in violation of Arizona law. Ibid. Recognizing the

circular nature of the government's contention, the court held that Landeros

could not have violated the Arizona law because "the officers lacked reasonable

suspicion[] at the time they initially insisted he identify himself, that Landeros

had committed, was committing, or was about to commit any crimes . . . ." Id.

at 869.

      In Clark, police stopped a van for driving without headlights and other

motor vehicle violations. 902 F.3d at 406. The driver produced a license and

proof of insurance, but could not locate the registration of the vehicle, which he

said belonged to his mother. Ibid. A computerized check confirmed the license

was valid, and the car was registered to a woman with the driver's surname, at

the driver's address. Ibid. The driver offered to call his mother, but the officer

ignored the offer. Ibid. Instead, after ascertaining the driver had a criminal

record for drug offenses, but no outstanding warrants, police returned to the

vehicle and inquired about the driver's criminal record. Id. at 406-07. Police

asked him to exit the car, and continued questioning him. Id. at 407.


                                                                           A-4731-17T1
                                       17
      The officer then asked the driver about the passenger, the defendant Clark,

for his name, how he knew him, and how they came to travel together. Ibid.

The officer then posed the same questions to Clark, and his answers conflicted

with the driver's. Id. at 407-08. Police then claimed they detected the smell of

marijuana on Clark's side of the car. After asking Clark to alight from the car,

a subsequent search of him uncovered a gun and a marijuana cigarette. Id. at

408. The driver was permitted to leave once issued a summons for his motor

vehicle violations, and Clark was arrested and later indicted for possession of a

weapon by a convicted felon. Ibid.

      The district court suppressed the gun and the Third Circuit affirmed, after

concluding that the police's inquiries of the driver and Clark prolonged the stop

beyond its traffic-related mission. Ibid. The court held that the officer could

not reasonably question the driver's authority after "he confirmed through the

computerized check that [the driver] was authorized to drive the vehicle, and

when there was no fact calling that authority into doubt." Id. at 411. The court

noted that the officer's inquiries were not really intended to acquire criminal

history information, which the officer already had obtained. Id. at 411 n.6. The

officer's "inquiry into [the driver's] criminal history was thus not tied to the

traffic stop's mission, and, at the point, 'tasks tied to the traffic infraction . . .


                                                                              A-4731-17T1
                                         18
reasonably should have been . . . completed.'" Id. at 411 (alteration in original)

(quoting Rodriguez, 575 U.S. at 354).

                                        C.

      Turning to the case before us, we conclude, as did the courts in Landeros

and Clark, that the police inquiries of Kerns prolonged the stop; were unrelated

to the traffic-related mission of the initial stop; and were not independently

supported by reasonable and articulable suspicion of other wrongdoing.

      It is evident from the video recording that, by questioning Kerns, the

troopers prolonged the stop beyond the time reasonably required to complete the

traffic-related mission. As noted, the point is not what came first  the traffic-

related investigation of the driver, or the non-traffic related inquiries of Kerns,

the passenger. The point is that the inquiries of Kerns extended the stop beyond

the time it would have ended, had the troopers limited themselves to the traffic-

related mission, as the Fourth Amendment required them to do.

      As in Landeros, we discern no evidence that questioning Kerns furthered

the investigation of the suspected traffic violations. Police stopped Kerns's

driver for speeding and operating a vehicle with a non-functioning headlight.

After the stop, they discovered the driver could not locate the registration.

However, the troopers did not question Kerns about the driver's ownership, or


                                                                           A-4731-17T1
                                        19
authority to drive the vehicle. And the trooper assured the driver that his

authority to possess the vehicle could be confirmed by running a computer

check. Simply put, the troopers' persistent inquiries of Kerns did not fall within

the scope of the traffic-related mission; rather, they were "aimed at 'detect[ing]

evidence of ordinary criminal wrongdoing.'"        Rodriguez, 575 U.S. at 355

(alteration in original) (quoting Edmond, 531 U.S. at 40-41).

      However, the police lacked reasonable and articulable suspicion of any

such wrongdoing. The State contends Kerns acted nervously, fidgeted with his

cell phone, and avoided eye contact before the trooper asked Kerns if he had

identification. Considering those behaviors, the risks to officers who make

traffic stops, and the degree of police intrusion, the State argues it was

reasonable for the trooper to ask Kerns for his identification, and then his name

and date of birth.

      We are unconvinced. We assume for argument's sake that Kerns acted

nervously, although the trial court made no such finding, and we are in no

position to make that finding ourselves. 7 Nonetheless, "nervousness is not

sufficient grounds for the reasonable and articulable suspicion necessary to


7
   The trial court noted in its written opinion that defendant denied that he
"engaged in any conduct that would justify questioning, a request for
identification or investigation of any kind."
                                                                          A-4731-17T1
                                       20
extend the scope of a detention beyond the reason for the original stop." State

v. Carty, 170 N.J. 632, 648 (2002). 8

      The State adds to the mix the "late hour" and the driver's failure to produce

the registration. But, neither fact converts Kerns's presumed nervousness into

reasonable and articulable suspicion of wrongdoing. Although it was a few

minutes past midnight, the stop occurred after the car had just left an interstate

bridge, where travelers are common, not a quiet residential neighborhood, where

they are not. Compare Vasquez v. Lewis, 834 F.3d 1132, 1138 (10th Cir. 2016)

(no reasonable suspicion when defendant was traveling late at night, on a major

interstate, and appeared nervous to the officers), with State v. Martinez, 260 N.J.

Super. 75, 78 (App. Div. 1992) (stating, "[w]e take notice . . . that operation of

a motor vehicle in the middle of the night on a residential street at a snail's pace

between five and ten m.p.h. is indeed 'abnormal'").

      Also, under the circumstances, the driver's failure to produce registration

was no reason to suspect his passenger of criminal activity. Notably, the trooper

assured the driver, who had produced his driver's license and proof of insurance

and was searching for the registration, that the trooper could easily confirm his



8
  Carty was modified, solely on the issue of its retroactivity, in State v. Carty,
174 N.J. 351 (2002).
                                                                            A-4731-17T1
                                        21
ownership by running his tag number through his computer system. Evidently,

the driver's failure to produce a registration was not a major concern, since the

trooper ultimately decided not to give the driver a ticket for that infraction, or

for his speeding or blown headlight, both of which provided troopers the grounds

to stop the car in the first place. See Hornberger v. Am. Broad. Co., 351 N.J.

Super. 577, 609 (App. Div. 2002) (stating that police's failure to issue a

summons for erratic driving, or near collision, or even mention it to the driver

"undermine[d] the importance of th[e] allegation"); cf. State v. Chisum, 236 N.J.

530, 548-49 (2019) (stating that once police decided not to issue a summons for

a noise violation at a motel, their "decision to continue their investigation to

ascertain the identities of every occupant of the [motel] room was misplaced").

      In sum, the troopers' persistent efforts to ascertain Kerns's identity

violated Kerns's right to be free from an unreasonable search or seizure, because

it prolonged the stop without furthering its traffic-related mission, and was not

independently supported by reasonable and articulable suspicion of wrongdoing.

                                        D.

      The State argues that even if the troopers' inquiries violated Kerns's rights,

the drug seizure at the police station was so attenuated from the constitutional

violation that the drugs should not be suppressed. "'[T]he exclusionary rule will


                                                                            A-4731-17T1
                                       22
not apply when the connection between the unconstitutional police action and

the evidence becomes so attenuated as to dissipate the taint from the un lawful

conduct.'" State v. Williams, 192 N.J. 1, 15 (2007) (quoting State v. Badessa,

185 N.J. 303, 311 (2005)). To determine whether the taint of unlawful conduct

has dissipated, a court must consider "three factors: (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." State v. Johnson, 118 N.J. 639, 653 (1990). The court does not apply

a "but for" test. Ibid.

      We decline to reach the State's attenuation argument because the State did not

raise the issue before the trial court. We are not obliged to reach an issue that the

State did not present to the trial court in the first instance, when it does not affect

a significant public interest or the court's jurisdiction. See Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973). Furthermore, assessing attenuation is

usually a "factual matter," Johnson, 118 N.J. at 653, which the trial court was best-

suited to address in the first instance, see State v. Robinson, 200 N.J. 1, 20-21

(2009) (stating an "appellate court should stay its hand and forego grappling

with an untimely raised issue" that was not fully explored by the trial court). In

particular, the record does not disclose, and the trial court did not find, how


                                                                               A-4731-17T1
                                         23
much time passed after the troopers questioned Kerns and before they

discovered the CDS ("temporal proximity" factor); or what was the non-traffic-

related purpose of questioning Kerns ("flagrancy and purpose" factor).

      We have declined to consider a new theory by the State to avoid applying

the exclusionary rule to an unconstitutional search or seizure, where the State

failed to develop the record when it had the chance to do so. See State v.

Mahoney, 226 N.J. Super. 617, 626 (App. Div. 1988) (declining to consider

State's inevitable discovery and search-incident-to-arrest arguments raised for

the first time on appeal); see also State v. Bradley, 291 N.J. Super. 501, 516-17

(App. Div. 1996) (declining to address inevitable discovery argument raised for

the first time on appeal).

      The burden to establish an exception to the warrant requirement rests with

the State. Elders, 192 N.J. at 246. The State did not attempt to meet its burden

to establish attenuation before the trial court. Therefore, we decline the State's

invitation that, on appeal, we affirm the order denying suppression on

attenuation grounds.

                                       E.




                                                                          A-4731-17T1
                                       24
      In sum, the trial court should have granted defendant's motion to suppress

the drugs that police seized from him, incident to his arrest for hindering after

police asked him to identify himself.

                                        II.

      Turning to the second incident, the court correctly denied Kerns's motion

to suppress the drugs police seized incident to arrest after he returned from

Newark. Based on Kerns's participation in the two controlled buys, police had

probable cause to arrest him. We so conclude, even assuming, for argument's

sake, that police lacked probable cause to believe Kerns committed an offense

during his round trip to Newark. A successful controlled buy is "persuasive

evidence" to establish probable cause. State v. Keyes, 184 N.J. 541, 556 (2005),

and it is in this case. The trial court credited the police sergeant who testified

he directly observed the transactions. We also reject Kerns's argument that any

probable cause from the controlled buys was too stale to justify Kerns's arrest

two days later. The police investigation was still ongoing. They did not

unreasonably delay effectuating their arrest. Kerns's challenge to the court's

second order lacks sufficient merit to warrant further discussion.       R. 2:11-

3(e)(2).




                                                                          A-4731-17T1
                                        25
      Reversed as to the order in Indictment No. 17-01-0050; affirmed as to the

order in Indictment No. 17-01-0051; and remanded.          We do not retain

jurisdiction.




                                                                       A-4731-17T1
                                     26
_____________________________

OSTRER, J.A.D., concurring.

      Although we conclude the trial court should have suppressed the drugs in

Indictment No. 17-01-0050 because police unlawfully prolonged the traffic stop,

I write to express my concern about the effect on personal privacy when police

demand passengers' identification for reasons untethered to the purpose of the

motor vehicle stop, even when the stop is not prolonged.

      Our Constitution imposes not only temporal limitations on a stop. Under

our Constitution, "police officers are required to use the least intrusive means

necessary in effectuating the purpose of an investigative detention." Chisum,

236 N.J. at 550. Our Court has consistently endorsed the "least intrusive means"

limitation.   See State v. Shaw, 237 N.J. 588, 613 (2019) (stating "[o]ur

Constitution requires officers to pursue the least intrusive means when they

conduct an extended investigatory detention"); State v. Coles, 218 N.J. 322, 344

(2014) (stating an "officer must use the least intrusive means necessary to

effectuate the purpose of the investigative detention"); State v. Davis, 104 N.J.

490, 502 (1986) (stating that "the investigative methods employed should be the

least intrusive means reasonably available to verify or dispel the officer's

suspicion in a short period of time"). One may ask whether demanding that each

passenger state one's name and date of birth, and supply documents or otherwise
prove that what they say is true, is the least intrusive means necessary for the

officer to complete the traffic-related investigation of the driver, which is the

purpose of the stop.

      I acknowledge that the United States Supreme Court adopted the "least

intrusive means" standard, see Florida v. Royer, 460 U.S. 491, 500 (1983), but,

"in Illinois v. Caballes[, 543 U.S. 405 (2005)] . . . severely weakened the

'scope'/'intrusiveness' limitation by holding that an investigative technique does

not violate that limitation unless the particular tactic employed 'itself infri nged

[the detainee's] constitutionally protected interest in privacy,' i.e. was itself a

search," 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth

Amendment  9.2(f) (6th ed. 2020) (alteration in original). The United States

Supreme Court has "concluded that the Fourth Amendment tolerate[s] certain

unrelated investigations that d[o] not lengthen the roadside detention," including

questioning and dog sniffs. Rodriguez, 575 U.S. at 354. And, our Supreme

Court followed suit with respect to dog sniffs. Dunbar, 229 N.J. at 539.

      Nonetheless, our State Constitution protects persons from warrantless

searches and seizures more broadly than the Fourth Amendment. State v. Shaw,

237 N.J. 588, 616 (2019). In particular, our Constitution requires a g reater

showing than does the Fourth Amendment to justify an officer ordering a


                                                                            A-4731-17T1
                                         2
passenger to exit a stopped vehicle, Smith, 134 N.J. at 617, or to justify an

officer opening a passenger-side door of a stopped vehicle, State v. Mai, 202

N.J. 12, 23 n.4 (2010). Our Constitution sets a higher bar than the Fourth

Amendment for conducting consent searches of motor vehicles. Carty, 170 N.J.

at 638-39. Police must have "a reasonable and articulable basis beyond the

initial valid motor vehicle stop" in order to effectuate a consent search. Id. at

647.

       Our Constitution protects more than an individual's interest in being free

from unnecessarily prolonged traffic stops. It also protects "the individual's

right to be protected from unwarranted and/or overbearing police intrusions."

Davis, 104 N.J. at 504; see also State v. Privott, 203 N.J. 16, 25-26 (2010)

(quoting Davis, 104 N.J. at 504). A police officer may not be "overbearing or

harassing in nature." Davis, 104 N.J. at 503 (quoting State v. Sheffield, 62 N.J.

441, 447 (1973)). Also, "'the degree of fear and humiliation that the police

conduct engenders'" is a factor that may convert an investigative stop into an

arrest. Dickey, 152 N.J. at 479 (quoting United States v. Lego, 855 F.2d 542,

544-45 (8th Cir. 1988)). In determining the reasonableness of police activity, a

court must balance the public's interest in being free from overbearing police




                                                                         A-4731-17T1
                                        3
activity against the State's law enforcement interests, in light of the "totality of

circumstances." Davis, 104 N.J. at 504.

      The Court observed that requiring reasonable and articulable suspicion of

wrongdoing to request consent to search "serve[d] the prophylactic purpose of

preventing the police from turning a routine traffic stop into a fishing expedition

for criminal activity unrelated to the stop." Carty, 170 N.J. at 647. Yet, that is

what police may do, if they routinely conduct passenger identity checks. Once

unmoored from the reasonable and articulable suspicion that justified the stop

in the first place, or from a new reasonable and articulable suspicion that may

arise while fulfilling the traffic-related mission, the identity check may become

a form of "bait," and the decision to go "fishing" may become a purely

discretionary call, absent separate suspicion of wrongdoing. However, as our

Court has recognized, unbridled discretion threatens the values that underlie the

right to be free from unreasonable searches and seizures. Id. at 641.

      We need not find that a passenger identity check is a "search" in order to

take it seriously. See LaFave, 4 Search & Seizure  9.3(d) (criticizing the "no-

search-ergo-no-scope-violation oversimplification" of United States Supreme

Court jurisprudence). Our Constitution protects a person's privacy, as well as a

person's liberty. Requiring a passenger to stand outside a vehicle is not a search;


                                                                            A-4731-17T1
                                         4
but it is an "intrusion on the passenger's privacy" deserving of protection. Smith,

134 N.J. at 615. Commanding passengers to say who they are and when they

were born, and to produce proof that they are telling the truth, can be humiliating

and overbearing, especially if the passengers perceive that they have been

arbitrarily singled out for this form of unrelated investigation. It would make

no difference to the passenger that one's identity is a matter of public record.

The passenger about whom there is no reasonable and articulable suspicion of

wrongdoing, yet is seized roadside, has a right to be left alone.

      In a free society, citizens are not subject to arbitrary commands to "show

their papers," or prove their identity. That was the fate of African-Americans

who had to show their "free papers" during slavery,1 and the fate of Jews who

had to show identification papers in the Warsaw Ghetto. 2 In Hornberger, we

quoted with approval the Massachusetts appellate court's observation that "'a



1
  See Frederick Douglass, Life and Times of Frederick Douglass (1892) 245-49
(describing the "custom in the State of Maryland" to require African-Americans
"to have what were called free papers," the alternative use of sailor's papers to
establish one's free status, and an incident in which free persons were required
to display their identification), republished on line and available at
https://docsouth.unc.edu/neh/dougl92/dougl92.html.
2
   See United States Holocaust Memorial Museum, Checking Papers in the
Warsaw Ghetto, https://encyclopedia.ushmm.org/content/en/photo/checking-
papers-in-the-warsaw-ghetto (last visited December 16, 2020).
                                                                           A-4731-17T1
                                        5
random request for identification papers constitutes . . . the sort of request

uncomfortably associated with authoritarian societies and most commonly made

of persons belonging to a racial or ethnic minority.'" 351 N.J. Super. at 613

(quoting Com. v. Alvarez, 692 N.E.2d 106, 109 (Mass. App. Ct. 1998)).

Although the question arose in a police officers' lawsuit alleging that a broadcast

mischaracterized their actions, we held in Hornberger that officers may not

routinely demand identification from passengers during a traffic stop for a motor

vehicle violation. 351 N.J. Super. at 611-14. Unlike in Sirianni, we held that

the passengers were not free to refuse the police officers' identification request,

and the request lacked reasonable suspicion that the passengers had engaged in

wrongdoing. Id. at 612-13.3


3
    In State v. Chapman, 332 N.J. Super. 452, 462 (App. Div. 2000), we
considered "what inquiries may a police officer lawfully propound to an
individual who has been stopped for a traffic infraction." We stated, "A police
officer may not engage in 'excessive questioning about matters wholly unrelated
to the purpose of a routine traffic stop.'" Id. at 463 (quoting United States v.
Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)). However, because the trooper's
questions about the occupants' itinerary were reasonably related to the erratic
driving that prompted the stop, we had no need to define precisely what
constituted "excessive." Ibid. In Hornberger, we effectively answered the
question as it relates to identity checks, holding that they were unlawful under
the circumstances presented there. 351 N.J. Super. at 613. Hornberger narrowed
the scope of questioning that would be permitted under the unnecessarily broad
statement in State v. Hickman, 335 N.J. Super. 623, 636 (App. Div. 2000), that
during a valid motor vehicle stop, "police may question the occupants, even on


                                                                           A-4731-17T1
                                        6
      The only reason the officer is physically able  as distinct from

constitutionally permitted  to inquire of a passengers' identity is that the

officer has seized the vehicle and everyone in it upon a reasonable and

articulable suspicion of a motor vehicle violation. Some states, eschewing the

federal approach, have adhered more closely to the principle that police activity

during the stop must be "reasonably related in scope to the circumstances which

justified the interference in the first place," Terry, 392 U.S. at 20, even if the

activity involves questioning rather than an actual search. See LaFave, 4 Search

& Seizure,  9.3(d) and n. 288 (approvingly citing cases).

      Courts of other states have concluded that asking passengers for

identification without reasonable or articulable grounds is an unconstitutional

intrusion. For example, a passenger's "mere presence" during a traffic stop for

a faulty license plate light did not "tip the balance" in favor of demanding

identification in State v. Affsprung, 87 P.3d 1088, 1095 (N.M. Ct. App. 2004).

"To permit law enforcement officers to ask for and to check out passenger

identification under these circumstances opens a door to the type of



a subject unrelated to the purpose of the stop, without violating the Fourth
Amendment, so long as such questioning does not extend the duration of the
stop." In that case, it was within the traffic-related mission for police to ask the
defendant-passenger if he had a driver's license or permission to use the car, as
the driver lacked a valid license and registration. Id. at 635, 637.
                                                                            A-4731-17T1
                                         7
indiscriminate, oppressive, fearsome authoritarian practices and tactics of those

in power that the Fourth Amendment was designed to prohibit." Ibid. See also

Alvarez, 692 N.E.2d at 109 (reaffirming prior caselaw that police must have a

reasonable and articulable suspicion before demanding identification from

passengers); State v. Rankin, 92 P.3d 202, 203 (Wash. 2004) (holding that the

state's constitution "affords automobile passengers a right of privacy that is

violated when an officer requests identification from a passenger for

investigative purposes, absent an independent basis for making the request") ;

Campbell v. State, 97 P.3d 781, 785 (Wyo. 2004) (holding that "[d]uring the

stop, an officer generally may not ask the detained motorist questions unrelated

to the purpose of the stop, including questions about controlled substances,

unless the officer has reasonable suspicion of other illegal activity");4 cf. State

v. Robbins, 171 A.3d 1245, 1249-50 (N.H. 2017) (stating test, under state

constitution, that police questioning may not "change[] the fundamental nature

of the stop," even if the questioning does not prolong the stop, when the question

is not "reasonably related to the initial justification for the stop" and the officer

lacked other "reasonable, articulable suspicion that would justify the question") .



4
    But see Marquez-Guitierrez v. State, 167 P.3d 1232, 1236 (Wyo. 2007)
(stating that an officer may engage a passenger in "idle chit chat").
                                                                             A-4731-17T1
                                         8
      Because we hold that the troopers unlawfully prolonged the traffic stop,

we need not decide that requiring Kerns to identify himself violated his State

constitutional rights. Yet, I express my concern about a rule that would allow

police to routinely demand that passengers say who they are, and prove that what

they say is so, for reasons unsupported by reasonable and articulable suspicion

of wrongdoing and for reasons unrelated to officer safety, so long as the inquiry

does not prolong the stop. Such a rule would threaten individual privacy, open

the door to "fishing expeditions," and increase the risk of arbitrary exercises of

police discretion.




                                                                          A-4731-17T1
                                        9

Add comment