SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1865-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KURT STUMP,

Defendant-Appellant.

_________________________

Argued August 17, 2021 – Decided September 7, 2021

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 19-05-

0789.

Kevin S. Finckenauer, Assistant Deputy Public 

Defender, argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Kevin S. 

Finckenauer, of counsel and on the briefs).

Monica do Outeiro, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Lori Linskey, Acting Monmouth 

County Prosecutor, attorney; Monica do Outeiro, of 

NOT FOR PUBLICATION WITHOUT THE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.
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counsel and on the brief; Alecia Woodard, Legal 

Assistant, on the brief).

PER CURIAM

Defendant Kurt Stump was a passenger in a taxi when it was stopped for 

motor-vehicle violations. A police officer removed defendant from the car, 

seized a prescription bottle from him, and charged him with third-degree 

possession of Xanax without a prescription, N.J.S.A. 2C:35-10(a)(1). The trial 

court denied defendant's motion to suppress the warrantless seizure of the bottle 

and Xanax pills. Thereafter, defendant pled guilty and was sentenced to one 

year of probation. 

He appeals, arguing he was illegally removed from the taxi and the 

prescription bottle and pills were not lawfully seized. We agree. The trial court 

did not find, and the record contains insufficient evidence to establish, that 

defendant posed a heightened risk of danger justifying his removal from the taxi. 

In addition, the evidence establishes that the bottle was recognizable as 

contraband only after the officer seized it and saw the prescription was for 

Methadone, but the pills appeared to be Xanax. Accordingly, we reverse the 

order denying the motion to suppress and defendant's conviction.
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I.

The facts were established at an evidentiary hearing where two witnesses 

testified: Police Officer Barry Hollo and defendant. At approximately 5 p.m. 

on March 21, 2019, Officer Hollo and two other officers were on a "proactive"

narcotics patrol in an unmarked police vehicle in a "high crime" area in Asbury 

Park. The officers observed defendant walking on a sidewalk while talking on

a cellphone and looking around. Hollo explained that when he saw defendant, 

he did not know him, nor had he had any prior interactions with defendant. 

Nevertheless, the officers pulled their vehicle to the side of the road to observe 

defendant. They saw defendant meet P.T., who Hollo recognized as someone 

who had previously been involved in the distribution of narcotics. 

As defendant and P.T. were standing on the sidewalk, a taxi pulled up to 

the curb and defendant and P.T. got into the cab. Officer Hollo testified that the 

cab had a female driver and another passenger in the rear seat. Hollo recognized 

the passenger as L.K., who Hollo knew to be involved in "[n]arcotics and violent 

offenses." 

After defendant and P.T. entered the taxi, Officer Hollo observed the cab 

pull away from the curb without signaling. Following in the police vehicle, 

Hollo saw the taxi make a left turn at an intersection that was "clearly marked 
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with a no left turn sign." Thereafter, the officers signaled for the taxi to pull 

over, which it did. 

The officers got out of their vehicle and approached the taxi. Officer 

Hollo walked up to the cab on the passenger side and saw defendant "moving 

frantically about the rear portion of the taxi." When Hollo got level with the 

passenger window, he saw defendant trying to push an orange pill bottle into the 

crease of the back seat. At that point, Hollo "escorted" defendant out of the cab 

by taking his wrists and walking him to the rear of the taxi. Defendant was 

holding the pill bottle in his left hand and Hollo could see that the pills in the 

bottle appeared to be Xanax. Hollo then took the pill bottle from defendant, 

examined it more closely, and saw that the prescription was in defendant's name, 

but for Methadone. Hollo also observed the pills more closely and, based on his 

training and experience, believed the pills were Xanax. Defendant told Hollo 

he had a prescription but Hollo placed defendant under arrest for possessing 

Xanax without a prescription. 

P.T. and L.K. were also removed from the cab and arrested by Hollo's

fellow officers for possessing other narcotics. According to Hollo, the taxi 

driver was not involved in any narcotic activity, and she was released without 

being given summonses or tickets for the motor-vehicle violations. 
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On cross-examination, Hollo elaborated that he had seen the pills in the 

bottle when defendant was still in the cab. He testified that he "immediately 

recognized the pills in the pill bottle as Xanax" because of their distinct 

rectangular shape. During recross-examination, in response to a question from 

the judge, Hollo explained that he was first able to see the label on the bottle 

when he removed the bottle from defendant and "was able to observe it . . . in a 

closer view." Later, Hollo was shown his police report, which stated that 

defendant had told Hollo that the prescription was for Xanax. Hollo then 

clarified that if he had earlier testified that defendant told him that the 

prescription was for Methadone, he "misspoke." Thus, Hollo confirmed that 

defendant had told him that the prescription was for Xanax, and Hollo saw that 

the prescription label was for Methadone only after he had taken the bottle from 

defendant. 

Defendant's testimony was in marked contrast to the testimony by Officer 

Hollo. Defendant stated that he was walking down a street in Asbury Park trying 

to call a cab so he could go see a friend who was at a hospital. Defendant waved 

a cab down, and the cab already had a passenger who he did not know. 

Defendant got into the cab, and, as they were driving toward the hospital, the 

cab stopped to pick up another person. The cab then began to move again but 
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suddenly pulled over. Defendant testified that his door "fl[ew] open," he was 

"grabbed and dragged out of [the] cab," and told "to put [his] hands on the 

vehicle." Defendant was then searched, and a police officer took a prescription 

bottle out of defendant's pocket. Thereafter, the officer conferred with other 

officers on scene, came back to defendant, and asked defendant if the pills were 

Xanax, then pointed out the prescription was for Methadone. According to 

defendant, he did not respond and was arrested. 

Defendant claimed he never gave the police permission to search him or 

to take the pill bottle from his pocket. Defendant also explained that when he 

was dragged out of the cab, the other two passengers were simultaneously pulled 

out of the vehicle and all three were searched. By contrast, defendant stated that 

the taxi driver was not questioned. 

After hearing the testimony and considering the physical evidence, which 

included the pill bottle, the trial court denied the motion to suppress. Relying 

on the testimony of Officer Hollo, the court found that the police had lawfully 

stopped the taxi because of two traffic violations. The court also found that 

defendant had been lawfully removed from the cab because the vehicle was 

stopped in a high-crime area and Officer Hollo saw defendant moving frantically 

in the cab while holding the pill bottle. 
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In making those findings, the court questioned whether Hollo could see 

the pills while the bottle was in defendant's possession. Nevertheless, the court 

found, under the circumstances, that Hollo was permitted to "investigate what 

was in defendant's hand." The court ultimately found Hollo could see through 

the bottle when he took the bottle from defendant. 

Finally, the trial court found that the bottle had been lawfully seized under 

the plain-view doctrine. In that regard, the court found that Officer Hollo was 

lawfully in an area to view defendant after the taxi had been stopped. The court 

found Hollo "had a right to ask to see [the prescription] bottle" and, 

consequently, was able to see the bottle's contents and label. The court also 

found that the pills in the bottle were immediately recognizable as contraband 

because "[p]rior to seeing the prescription bottle, Officer Hollo observed 

defendant moving frantically in what he believed was an attempt to conceal 

something." Moreover, when defendant exited the cab, he claimed to have a 

prescription bottle, but the officer saw that the prescription did not match the 

shape of the pills. The court went on to find that once the officer had seized the 

bottle, the officer could observe that the prescription was for Methadone, but the 

pills appeared to be Xanax. In making that finding, the trial court stated:

Looking at the totality of the circumstances from the 

standpoint of an objectively reasonable police officer 
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with Officer Hollo's training and experience, Officer 

Hollo had probable cause to associate the Xanax pills 

found in plain view with contraband prior to his seizure 

or at the time that he seized them.

II.

On appeal, defendant makes two arguments, which he articulates as 

follows:

POINT I – DEFENDANT'S REMOVAL FROM THE 

VEHICLE WAS UNCONSTITUTIONAL BECAUSE 

THERE WAS NO "H[E]IGHTENED AWARENESS

OF DANGER" DURING THE MOTOR VEHICLE 

STOP

POINT II – SEIZURE OF DEFENDANT'S PILL 

BOTTLE WAS UNCONSTITUTIONAL BECAUSE 

IT WAS NOT IMMEDIATELY APPARENT THAT 

THE PILL BOTTLE CONTAINED CONTRABAND, 

AND INSTEAD THE COURT RELIED ON 

OBSERVATIONS MADE AFTER DEFENDANT'S 

ILLEGAL REMOVAL FROM THE VEHICLE AND 

AFTER THE SEIZURE ITSELF OCCURRED IN 

FINDING THE SEIZURE WAS PROPER

A. The Pill Bottle was an Intrinsically 

Innocent Object that Fails to Provide 

Grounds for Probable Cause

B. Defendant's Movements while in the 

Taxi, Even in Conjunction with the Pill 

Bottle, Fail to Give Rise to Probable Cause

C. The Motion Court Improperly Relied 

on Observations Made After Defendant 
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was Unlawfully Removed from the Vehicle 

and After the Pill Bottle was Unlawfully 

Seized in Determining Probable Cause

In reviewing an order concerning a motion to suppress following an 

evidentiary hearing, appellate courts generally defer to the factual findings made 

by the trial court "so long as those findings are supported by sufficient credible 

evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State 

v. Elders, 192 N.J. 224, 243 (2007)). The legal conclusions of a trial court are

reviewed de novo. State v. Hubbard, 222 N.J. 249, 263 (2015) (citing State v. 

Gandhi, 201 N.J. 161, 176 (2010)).

Having reviewed the record, we find no evidence supporting a heightened 

caution or reasonable suspicion that defendant was engaged in illegal activity 

justifying his removal from the taxi. In addition, there was no evidence from 

which Officer Hollo could have determined that the bottle contained 

unprescribed drugs before seizing it from defendant. Therefore, we reverse. 

A.

Both the United States and New Jersey Constitutions prohibit 

"unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. 

I, ¶ 7. A motor vehicle can be lawfully stopped without a warrant if a police 

officer has "a reasonable and articulable suspicion that the driver of a vehicle, 
10 A-1865-19

or its occupants, is committing a motor-vehicle violation or a criminal or 

disorderly persons offense." State v. Scriven, 226 N.J. 20, 33-34 (2016) (citing 

State v. Locurto, 157 N.J. 463, 470 (1999)).

"[O]rdering a person out of a car constitutes a seizure because the person's 

liberty has been restricted." State v. Bacome, 228 N.J. 94, 104 (2017) (citing 

State v. Smith, 134 N.J. 599, 609, 611 (1994)). Consequently, an occupant can 

be ordered to get out of a vehicle "only when it is objectively reasonable to do 

so." Ibid.; see also Maryland v. Wilson, 519 U.S. 408, 411-14 (1997). 

New Jersey law is more protective than federal law on the grounds 

justifying a passenger's removal from a car stopped for a motor-vehicle 

violation. Bacome, 228 N.J. at 105. Under New Jersey's Constitution, police 

officers can "remove passengers only when the circumstances present reason for 

heightened caution." Id. at 107. Accordingly, a police officer can "order a 

passenger out of a vehicle if the officer can 'point to specific and articulable 

facts that would warrant heightened caution to justify ordering the occupant[] to 

step out of a vehicle detained for a traffic violation.'" Id. at 106 (quoting Smith, 

134 N.J. at 618). An officer can also "order a passenger out of an automobile if 

the officer ha[s] an articulable suspicion short of probable cause to believe that 
11 A-1865-19

a crime ha[s] been committed." State v. Mai, 202 N.J. 12, 25 (2010) (quoting 

State v. Tucker, 136 N.J. 158, 167 (1994)).

Furtive movements by a passenger may satisfy the heightened-caution 

standard. Bacome, 228 N.J. at 107 (citing Smith, 134 N.J. at 618-19). 

Consequently, if a passenger is observed making surreptitious movements and 

those movements suggest a risk to officer safety, that risk supports the exercise 

of heightened caution. Ibid. Nevertheless, "[n]either 'inarticulate hunches' nor 

an arresting officer's subjective good faith can justify infringement of a citizen's 

constitutionally guaranteed rights." State v. Alessi, 240 N.J. 501, 518 (2020)

(alteration in original) (quoting State v. Arthur, 149 N.J. 1, 8 (1997)).

Here, the trial court found that the taxi was lawfully stopped because of 

two motor-vehicle violations. That finding is supported by substantial credible 

evidence in the record. The trial court did not, however, find that there were

circumstances warranting heightened caution for officers' safety. Officer Hollo 

never testified that he had any concern about defendant posing a risk. Instead, 

Hollo's testimony focused on his observation that defendant was holding a 

prescription bottle. While Hollo testified on cross-examination that he had a 
12 A-1865-19

general concern for officer safety because "[y]ou never know what's going to 

happen on a car stop," he never linked that concern to defendant.1

Because there is no evidence that defendant's movements presented reason 

for heightened caution due to officer safety, the question becomes whether

defendant's possession of a prescription bottle gave rise to a reasonable and 

articulable suspicion that defendant was engaged in criminal activity. Officer 

Hollo testified that when he walked up to the passenger window, he saw 

defendant trying to stuff a prescription bottle into a crease in the rear seat of the 

taxi. The prescription bottle by itself is not inherently dangerous nor was it 

immediately recognized as contraband. See Russell v. Coyle, 266 N.J. Super. 

651, 660 (App. Div. 1993). The prescription bottle and pills could be recognized 

as contraband only when the officer knew what the prescription was for and 

whether the pills in the bottle matched that prescription.

Officer Hollo testified that he first had seen that the prescription on the 

bottle was for Methadone after he had taken the bottle from defendant. 

Accordingly, when the officer observed defendant in the car, he had no 

articulable facts indicating that the possession of the prescription bottle was 

1

 Based on Officer Hollo's testimony, L.K. may have presented a risk, since 

Hollo testified L.K. was known to have engaged in "violent offenses." Hollo, 

however, did not testify that defendant posed a safety risk.
13 A-1865-19

illegal. In short, there are insufficient facts in the record to support the officer's 

removal of defendant from the taxi.

B.

In addition, there are no facts supporting the seizure of the prescription 

bottle and pills under the plain-view doctrine. The plain-view exception allows 

police to seize contraband when (1) a police officer is lawfully in the area where 

he or she makes the observation; and (2) it is "immediately apparent that the 

seized item is evidence of a crime." State v. Gonzales, 227 N.J. 77, 101 (2016).

Officer Hollo testified that he first had seen the label on the prescription 

bottle after he took the bottle from defendant. Accordingly, before seizing the 

bottle the officer had no articulable suspicion or probable cause to believe that 

the prescription bottle contained unprescribed drugs. While Officer Hollo 

testified that he could see the pills in the bottle when the bottle was still in 

defendant's possession, and while he also testified that he believed the pills were 

Xanax, he had no basis to believe that the prescription on the bottle was for 

something other than Xanax until he seized the bottle and observed it more 

closely. 

The trial court found, under the circumstances, Officer Hollo had probable 

cause to associate the pills with contraband "prior to his seizure or at the time 
14 A-1865-19

that he seized them." The law does not allow an "either-or" finding. The bottle

and pills could be seized under the plain-view exception only if it was 

"immediately apparent" they were contraband. Ibid. Moreover, the plain-view 

exception does not apply retrospectively. A police officer must have "probable 

cause to associate the property with criminal activity" before seizing it. State v. 

Bruzzese, 94 N.J. 210, 237 (1983) (citation omitted); accord State v. Williams, 

461 N.J. Super. 1, 11 (App. Div. 2019) (citing State v. Johnson, 171 N.J. 192, 

208 (2002)).

C.

In summary, the trial court never found that there were circumstances 

giving rise to a heightened caution justifying defendant's removal from the taxi. 

Furthermore, the facts do not support the seizure of the bottle and pills under the 

plain-view exception. Accordingly, we reverse the order denying defendant's 

motion to suppress the seizure of the prescription bottle and the pills. We also 

reverse defendant's conviction. We remand with direction that the prescription 

bottle and the pills be suppressed. The State can then decide how it wishes to 

proceed.

Reversed and remanded. We do not retain jurisdiction.