During its 2016-17 term, the Supreme Court of New Jersey decided three particularly noteworthy criminal cases.

Presenting Live Testimony at a Hearing

In State v. Amed Ingram (A-56-16) (079079), the court considered whether prosecutors at a detention hearing under the Criminal Justice Reform Act (CJRA) have a statutory or constitutional obligation to present evidence in the form of live testimony.

Defendant, Amed Ingram, had been arrested on Jan. 1, 2017, at 1:08 a.m., after a police officer observed him in possession of a defaced .45 caliber handgun loaded with eight rounds. The State charged defendant in a complaint-warrant with second-degree unlawful possession of a handgun, second-degree possession of a firearm for an unlawful purpose, second-degree possession of a firearm by certain persons with a prior conviction, and fourth-degree receipt of a defaced firearm. The affidavit of probable cause in support of the complaint tracked the statutory language of the laws defendant was accused of violating, and, in a space on the form seeking an explanation as to how law enforcement became aware of the stated facts, the officer wrote, “officer observations.”

The officer also prepared a preliminary law enforcement incident report (PLEIR), which was incorporated into the affidavit. The PLEIR offered that: 1) the “complaining officer” and “[a]nother law enforcement officer … personally observed the offense”; 2) a handgun “was involved in the incident”; and 3) the officers recovered spent shell casings. A Pretrial Services officer prepared a Public Safety Assessment (PSA). It rated defendant 6 out of 6 — the highest level — for risk of both failure to appear and new criminal activity, and also noted defendant’s criminal history.

The State moved for detention and submitted the following documents: the complaint-warrant, the affidavit of probable cause, the PSA, the PLEIR and defendant’s criminal history. Defense counsel objected and argued that the CJRA and court rules required the State to present a live witness to establish probable cause.

The trial court rejected defendant’s claims. It found that the State could proceed by proffer at a detention hearing. In so deciding, the court relied on the language and legislative history of the CJRA and also examined federal law for support. The court also noted that judges have discretion to order witness testimony. In addition, the court found that the documents submitted by the State established probable cause for the offenses charged. The court concluded that defendant would pose a risk of danger to the community if released, and, based on clear and convincing evidence, ordered defendant detained.

Defendant appealed the order pursuant to N.J.S.A. 2A:162-18(c). In addition to the statutory claims he raised before the trial court, defendant argued that to allow the prosecutor to proceed by proffer alone would violate his right to due process.

The Appellate Division affirmed, observing that the constitution did not require that procedures to determine probable cause “be accompanied by the full panoply of adversary safeguards.” Id. at 102, 1155 A.3d 597 (quoting Gerstein v. Pugh, 420 U.S. 103, 119 (1975). The panel relied, in part, upon federal case law interpreting the Bail Reform Act of 1984, 18 U.S.C.A. Secs. 3141 to 3156. Two weeks after the Appellate Division issued its opinion, a grand jury returned an indictment that charged defendant with four firearms offenses.

Certification was thereafter granted by the Supreme Court. The court noted that, at a detention hearing, a defendant has the right “to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.” N.J.S.A. 2A:162-19(e)(1). The court also noted that, if a grand jury has not returned an indictment, the prosecutor must establish probable cause that the defendant committed the predicate offense.” N.J.S.A. 2A:162-19(e)(2). The court further noted that, in deciding whether detention is warranted, a court may “take into account” a number of factors. N.J.S.A. 2A:162-20(a)-(f).

Section 19(e)(1) of the statute, the court noted, grants defendants the right to “cross-examine witnesses who appear at the hearing.” N.J.S.A. 2A:162-19(e)(1) (emphasis added). Under Section 19(e)(1), the court stated, defendants have the right to cross-examine a witness who testifies at a hearing. This section, the court found, does not require the State to call a witness. Section 19(e)(1), the court further noted, also permits a defendant “to present information by proffer.” The statute is silent, however, the court stated, about whether the State may call witnesses, cross-examine witnesses, or “otherwise” present information to the judge, all of which the act expressly permits a defendant to do. The court found that it could not conclude that the legislature’s silence either bars the State from presenting proofs in the ways specified for defendants or obligates it to summon a live witness. Other parts of the statute, the court noted, reveal that the legislature intended for the parties to use documentary evidence at a detention hearing.

Citing Gerstein, the court found that the U.S. Constitution does not require the prosecution to present live testimony to establish probable cause. The CJRA, in effect, the court noted, incorporated Gerstein’s mandate that a judge find probable cause as a prerequisite to detention after an arrest. The act did not elevate the standard, the court found. Rather, grand jury presentations can include hearsay evidence that neither the defendant nor defense counsel may observe, let alone cross-examine. Had a grand jury indicted defendant before the detention hearing, the court noted, the State would not have needed to establish probable cause, and the defendant could not have persuasively argued that the court’s reliance on the indictment violated his due process rights.

Relying upon the U.S. Supreme Court’s decision in United States v. Salerno, 481 U.S. 739, 752 (1987), the court noted that the CJRA provides identical safeguards to the federal bail reform act, which Salerno found satisfied constitutional concerns. Subject to the judge’s discretion, the court noted, federal courts have concluded that the government may proceed by proffer under federal law, subject to the judge’s discretion.

The court ultimately held that the State is not constitutionally or statutorily required to present live testimony at every hearing, though the trial court does retain discretion to require direct testimony if it is dissatisfied with the State’s proffer. Though affirming the Appellate Division’s ruling, the court found that the State had not established probable cause for possession for an unlawful purpose, but the question was rendered moot by the grand jury’s return of an indictment. The court noted that the probable cause affidavit should contain sufficient information in the form of narrated factual details, not legal conclusions, to explain how probable cause exists for each charge. The affidavit, the court also noted, should contain more than a mere recitation of statutory language.

Standard for Conducting a Canine Sniff

The court considered the appropriate standard for police officers to conduct a canine sniff for the detection of narcotics during a motor vehicle stop in  State v. Dunbar, ___ N.J. ___ (2017). A Bradley Beach police officer, Tardio, had observed a green Ford Focus parked in one of QuickChek’s handicapped-reserved spaces. The car’s New Jersey license plate did not bear a handicapped designation, and there was no placard in the interior of the car indicating such a designation. The officer recognized the car as belonging to defendant Dunbar. The police had earlier received information from the Manasquan Police that a female reported she was getting her drugs from Dunbar. She also reported that, to distribute the drugs, Dunbar used a green Ford Focus with a license plate matching the car parked at QuickChek.

Tardio pulled into the QuickChek lot to initiate a motor vehicle stop. He got out of his patrol car and approached the Ford Focus. While speaking with Dunbar, another officer, Major, came onto the scene accompanied by a narcotics canine. Tardio instructed Dunbar to exit the vehicle and walk toward officer Major, who was speaking with a woman named Lisa Parker. Lisa’s sister, Deborah Parker, came out of the QuickCheck, and Officer Tardio confirmed that all three people had been in the stopped vehicle. After the individuals were identified, Officer Tardio immediately contacted dispatch to request a warrant search. The search resulted in an outstanding warrant for Deborah Parker. Officer Tardio requested that a female officer who had arrived on the scene about two minutes later arrest Deborah Parker. Dunbar was then questioned by Officer Tardio about allegations that he had been selling drugs. Officer Tardio informed Dunbar, who denied any wrongdoing, that Officer Major and the canine would conduct a sniff around the vehicle’s exterior. The sniff indicated the presence of narcotics. Officer Tardio instructed Dunbar that he could consent to a search of his vehicle or the car would be impounded pending issuance of a warrant. Dunbar was read his rights. Dunbar initially refused consent but changed his mind when a tow truck arrived. With Dunbar’s permission, the officers searched the vehicle’s trunk, from which they recovered Xanax, oxycodone and heroin. Dunbar and Deborah Parker were thereafter arrested.

Prior to trial, Dunbar moved to suppress the drugs, claiming the officers did not have reasonable suspicion that he was engaged in a drug transaction in his vehicle at the time it was parked in the QuickChek lot, and therefore the canine sniff was illegal. The trial court granted the motion and held that the number of officers at the scene and the threat to tow Dunbar’s vehicle prevented voluntary consent from being provided.

The State thereafter sought reconsideration in light of the recent decision of the United States Supreme Court in Rodriguez v. United States, ___ U.S. ___ (2015). The court denied the State’s motion, noting that the State had not met its burden of proof that the time for tasks necessitated by Dunbar’s traffic violation included the time of the dog sniff.

The Appellate Division affirmed the lower court, holding that the officers did not have reasonable suspicion that Dunbar or the Parkers were engaged in drug activity, and therefore the canine sniff was unlawful. The Supreme Court reversed, adopting the federal standard barring unnecessary delays for the purpose of canine sniffs. Officers, the court held, need not have reasonable suspicion of a drug offense so long as the canine sniff does not prolong the stop beyond the time required to complete the stop’s mission.

The court declared that an officer does not need reasonable suspicion independent from the justification for a traffic stop in order to conduct a canine sniff, but the sniff may not be conducted in a way that prolongs the traffic stop beyond that required to complete the stop’s mission, unless the officer possesses reasonable and articulable suspicion to do so. In other words, the Court noted, in the absence of such suspicion, the officer may not add time to the stop.

Applying the legal standard to the facts, the Court noted there were two issues: whether the canine sniff prolonged Officer Tardio’s traffic stop beyond the time reasonably required to address the defendant’s parking infraction; and whether any delay was justified by independent reasonable suspicion that Dunbar possessed drugs at the time. Because the record was insufficient, the court remanded the case to the trial court and, in so doing, noted it was expressing no opinion as to whether the canine sniff prolonged the stop or whether the totality of the circumstances created reasonable suspicion that Dunbar possessed drugs at the time.

Right of Passengers During a Car Stop

In State v. Bacome, ___NJ ___ (2017) (A-9-15) (075953), the court dealt with the circumstances under which police officers may require a passenger in an automobile to exit a vehicle after a valid stop.

In April 2011, detectives observed the defendant driving a blue Ford Bronco. The owner of the Bronco, S.R., was riding in the front passenger seat. The detectives knew the men used and dealt narcotics, and the police had received complaints of traffic to and from defendant’s apartment, which the police believed suggested narcotics activity. The detectives followed the Bronco, losing sight of it shortly after arriving in an area of Newark known for crime and drug trafficking. They drove back to Woodbridge. An hour later, the Bronco was again observed. The detectives saw S.R. in the passenger seat not wearing his seatbelt and conducted a traffic stop.

Once the Bronco was stopped, one of the detectives approached the driver’s side and the other the passenger’s side. The first detective reported that he saw defendant lean forward as if he were reaching under his seat and immediately ordered defendant to exit the vehicle. The second detective then ordered S.R. out of the passenger’s seat. Both occupants complied.

The detectives questioned the men separately about their destination. Contradictory responses were given. Because S.R. no longer occupied the passenger’s seat, the second detective was able to glimpse a rolled-up piece of paper in the shape of a straw and a small piece of Brillo-like steel wool, items consistent with narcotics use. A detective obtained S.R.’s written consent to search the car, and found crack cocaine and narcotics-related paraphernalia. The detectives placed defendant and S.R. under arrest.

Defendant later moved to suppress the seized narcotics and paraphernalia; the trial court denied the motion. The court found the stop to be lawful because of the passenger’s failure to wear a seatbelt. The court also found the passenger’s removal from the car to be lawful because the officers had reasonable and articulable suspicion of criminal activity. Defendant later pleaded guilty to third-degree possession of cocaine, a controlled dangerous substance, and was sentenced to a three-year prison term in accordance with his plea agreement.

On appeal, defendant, for the first time, specifically challenged S.R.’s removal from the vehicle. The Appellate Division remanded to the trial court, which found that defendant’s reaching under the seat created the heightened caution required under State v. Smith, 134 N.J. 599, 618-20 (1994),  and warranted S.R.’s removal.

Defendant again appealed to the Appellate Division. In a split decision, the majority reversed the trial court’s order denying the suppression motion and concluded that the detectives failed to prove Smith’s heightened-caution requirement. The majority held that stopping the vehicle for a seatbelt violation was a “ruse” that allowed the detectives to conduct a narcotics investigation.

The dissent maintained that the detectives lawfully stopped the vehicle because S.R. had failed to wear a seatbelt and they reasonably suspected that the men had  purchased narcotics in Newark. The dissent concluded that a culpable passenger’s liberty interest is no different from that of a driver who commits a traffic violation, and that asking S.R. to step out of the vehicle was permissible.

The split within the panel afforded the State an appeal as of right on the issues reached by the Appellate Division. The court granted the State’s petition for certification on other relevant issues

The court held that the heightened-caution standard announced in Smith remains the proper test for determining the appropriateness of ordering a passenger from a car. Under Smith, the court noted, defendant’s furtive movements inside a recently stopped vehicle provided an objectively reasonable basis for officers’ exercising heightened caution, justifying removal of the passenger.

In so deciding, the court noted that, to be lawful, an automobile stop must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed. Because S.R. failed to wear his seatbelt, he violated the traffic code, rendering the stop that followed lawful. The court found that the detectives’ subjective intent was irrelevant in light of the objective grounds for the stop. Because the stop was justified by the detectives’ reasonable and articulable suspicion as to the traffic offense, the court ruled, it need not reach the issue of reasonable and articulable suspicion of drug activity.

The court also found that its conclusion was consistent with judicial interpretations of the federal and New Jersey Constitutions. Under its 1994 decision in Smith, the court noted, it held that officers may order passengers out of a vehicle only if they can assert “specific and articulable facts that would warrant heightened caution.” Smith, 134 N.J. at 618. In so finding, the court rejected that the Smith standard has been eroded by subsequent New Jersey precedent. It noted instead that, under Smith, furtive movements, such as those of the defendant driver, who was seen reaching under his seat, may satisfy the heightened-caution standard. The court also stated that defendants should state the basis for a motion to suppress when making it, so that an appropriate record is created.


Zegas, a Past President of the Association of Criminal Defense Lawyers, and a Past Chair of The Criminal Law Section of the New Jersey State Bar Association, owns a law firm in Summit, New Jersey.