NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 2334-21

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KYLE A. SMART,

Defendant-Respondent.

Argued May 31, 2022 – Decided June 30, 2022

Before Judges Messano, Accurso and Rose.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Ocean County, 

Indictment No. 21-10-1417.

Samuel Marzarella, Chief Appellate Attorney, argued 

the cause for appellant (Bradley D. Billhimer, Ocean 

County Prosecutor, attorney; Samuel Marzarella, of 

counsel and on the brief).

Clifford P. Yannone argued the cause for respondent 

(Starkey, Kelly, Kenneally, Cunningham & Turnbach, 

attorneys; Clifford P. Yannone, of counsel and on the 

brief).

The opinion of the court was delivered by 

ROSE, J.A.D.

APPROVED FOR PUBLICATION

June 30, 2022

APPELLATE DIVISION
A-2334-21 2

By leave granted, the State appeals from a March 1, 2022 Law Division 

order suppressing evidence seized from a motor vehicle without a warrant. 

Police conducted an investigatory stop after surveilling the car for more than 

an hour and developing information that front seat passenger, Kyle A. Smart, 

was engaged in drug activity. At the roadside stop, no evidence of drug 

activity was observed in plain view; the occupants of the car neither made 

incriminating statements nor furtive movements; and the driver denied consent 

to search. Police then requested a K-9 unit. The dog alerted to the presence of 

narcotics, leading to a warrantless search of the car and seizure of a loaded 

handgun and drugs from the cabin.

Finding police had reasonable and articulable suspicion to pull over the 

vehicle, the motion judge upheld the stop and further determined probable 

cause arose when the canine sniff revealed the presence of narcotics in the car. 

However, the judge found the circumstances giving rise to probable cause were 

not "unforeseeable and spontaneous," justifying a warrantless search under the 

automobile exception to the warrant requirement pursuant to State v. Witt, 223 

N.J. 409, 450 (2015). Accordingly, the judge suppressed the evidence seized. 

On appeal, the State primarily contends police did not "possess[] 

probable cause well in advance of [the] automobile search," and thus law 

enforcement did "not sit on probable cause," in a manner proscribed by Witt. 
A-2334-21 3

See id. at 431-32. The State therefore maintains the warrantless search and 

seizure here passed constitutional muster under Witt. 

Although we agree police could not have secured a warrant before the 

car was stopped and, in that sense, did not "sit" on probable cause, we disagree 

with the State's contention that probable cause under these circumstances was 

unforeseeable and spontaneous within the meaning of Witt. Notwithstanding 

the officers' reasonable suspicion that defendant was engaged in illegal activity 

involving drugs, leading to this investigatory stop, probable cause did not arise 

until the canine alerted for the presence of narcotics. We therefore conclude 

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. Accordingly, our review of the record leads us to 

affirm the motion judge's order, but we do so for slightly different reasons. 

See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) (permitting an 

appellate court to affirm for other reasons because "appeals are taken from 

orders and judgments and not from opinions").

I.

Finding the material facts essentially uncontroverted, the judge decided 

the motion without a testimonial hearing. See R. 3:5-7(c) (requiring a 

testimonial suppression hearing when material facts are in dispute). That 
A-2334-21 4

finding was not contested in the trial court and is not disputed on appeal. We 

summarize the pertinent facts from the parties' written submissions and 

arguments before the motion judge.

Around 2:00 p.m. on August 4, 2021, Patrolman Louis Taranto of the 

Toms River Police Department, Special Enforcement Team (TRPD-SET) was 

conducting surveillance in the vicinity of a condominium complex located in 

the township. The complex was known to Taranto as a high crime area, which 

included frequent drug activity. Taranto noticed an unoccupied white 2017 

GMC Terrain vehicle with tinted front windows parked in the complex's lot. 

The vehicle bore Georgia registration; a Carvana license plate frame was 

affixed to its front end. 

While making these observations, Taranto recalled information he had 

received the previous month from a registered confidential informant (CI). 

According to the CI, "a black male with facial tattoos," between five-feetseven and five-feet-nine inches, "with long dreadlocks," known as "Killer," 

operated a similar vehicle and distributed drugs "in the Toms River area." The 

CI had provided Taranto with a photograph of the GMC, which led the officer 

to identify the parked car. Based on the CI's information, Taranto conducted a 

database search, which disclosed defendant's name, height, and moniker. 

Defendant's mugshot depicted him with facial tattoos and long dreadlocks; his 
A-2334-21 5

criminal record included drug-related arrests, and several convictions, 

including weapons offenses. The totality of this information led Taranto to 

believe defendant was the suspect described by the CI. 

Approximately thirty minutes later, a woman entered the driver's side of 

the car, and defendant entered the front passenger's side after he placed a small 

child in the rear seat. Taranto followed the vehicle, which made stops at a 

restaurant and bank in Toms River, characterized by the officer as "consistent 

with legitimate patronage." Apparently, other TRPD-SET officers joined the 

surveillance. 

Eventually, the car stopped at a residence located on Shenandoah 

Boulevard. The driver remained in the car. Defendant exited the car, walked 

to the backyard of the building, and returned shortly thereafter with an 

unidentified white woman. The woman entered the residence; defendant reentered the GMC. Police did not observe a hand-to-hand transaction but 

believed defendant and the woman had engaged in a drug deal based on the 

totality of the circumstances, including Taranto's training and experience, the 

information provided by the CI, and information provided by a concerned 

citizen (CC) to another TRPD-SET officer in June 2021. The officer told 

Taranto the CC suspected narcotics-related transactions between multiple 

residents of the building and the occupants of several cars that stopped there. 
A-2334-21 6

On one occasion, the CC observed "two black males" arrive in a white GMC 

Terrain bearing the same Georgia license plate as defendant's vehicle. 

At 3:17 p.m. on the date of the incident, approximately one hour and 

seventeen minutes after Taranto initially identified the car at the condominium 

complex, police stopped the GMC near Hooper Avenue and Feathertree Drive. 

Taranto asked defendant to get out of the car. A pat-down revealed no 

weapons or drugs. After his Miranda1rights were read to him, defendant 

declined to disclose his reason for stopping at the Shenandoah residence or 

identify anyone with whom he met. Defendant claimed he merely "stopped to 

'see his people.'" The driver refused consent to search the GMC but stated 

"nothing in the car was hers." The officers then called for a K-9 unit, and 

asked the driver to step out of the vehicle and remove the child. 

At 3:40 p.m., approximately twenty-three minutes after police stopped 

the car and consent to search was refused, the K-9 unit conducted an exterior 

sniff of the vehicle. Immediately following the canine's positive detection, 

police searched the vehicle. Inside a backpack located on the front passenger's 

side floor, police found suspected heroin packaged in more than 400 wax 

folds, an unloaded handgun magazine, and a digital scale. Police also seized a 

loaded .40 caliber handgun from the center console, and $1,600 in cash from a 

1

 Miranda v. Arizona, 384 U.S. 436 (1966).
A-2334-21 7

purse found on the rear seat. Defendant was arrested; the driver and her child 

were permitted to leave the scene in the GMC. 

Defendant was charged in a seven-count Ocean County indictment with 

various drug and weapons offenses. He moved to suppress the evidence seized 

from the GMC, challenging the validity of the stop and the warrantless seizure 

of evidence. Following oral argument, the motion judge reserved decision. 

In her March 1, 2022 decision from the bench, the judge initially found 

police "had articulable reasonable suspicion that criminal or unlawful activity 

had just occurred when they stopped the vehicle." Detailing the officers' 

observations as summarized above, the judge's decision was grounded in the 

totality of the circumstances during the "long period of surveillance." 

Turning to the automobile exception to the warrant requirement, the 

motion judge noted the parties did not dispute probable cause arose when the 

canine alerted for the presence of narcotics. Thus, the remaining legal issue 

before the judge was "whether the police could search the vehicle or if they 

needed to impound the vehicle and obtain a search warrant." Citing Witt and 

our decision in State v. Rodriguez, 459 N.J. Super. 13 (App. Div. 2019), the 

judge was not persuaded by the State's argument that the circumstances giving 

rise to probable cause to search the GMC were unforeseeable and spontaneous.
A-2334-21 8

Finding "everyone waited twenty-five minutes" for the K-9 unit to 

arrive, alert to the presence of drugs, and establish probable cause, the judge 

elaborated:

The investigatory stop was based on an hour-andtwenty-minute surveillance of the defendant that was 

initiated by a CI's tip. Stopping defendant's car was 

not based on some traffic violation which . . . then led 

to probable cause to conduct a warrantless search. 

The surveillance, car stop, and K-9 sniff were based 

solely on the officers' belief that defendant had drugs 

in the vehicle.

Under Witt, the automobile exception to a 

warrantless search of defendant's car does not apply as 

their goal was a clear and deliberate effort to uncover 

drugs. There was nothing spontaneous about the 

decision to search defendant's car. 

The judge also rejected the State's argument that obtaining a warrant was 

impracticable due to the inherent mobility of the vehicle in view of the number 

of officers at the scene, the proximity of the impound lot, and because the 

occupants had been removed from the vehicle. 

II.

Ordinarily, our review of a trial court's decision on a suppression motion 

is circumscribed. See e.g., State v. Dunbar, 229 N.J. 521, 538 (2017) (stating 

appellate courts defer to the motion judge's factual and credibility findings 

provided they are supported by sufficient credible evidence in the record). 

Deference is not due where, as in the present matter, the trial court has not 
A-2334-21 9

conducted a testimonial hearing and the facts are undisputed. Ibid.

(recognizing legal conclusions are reviewed de novo). 

Well-established constitutional principles guide our review. 

"Warrantless seizures and searches are presumptively invalid as contrary to the 

United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 

19 (2004); see also U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "Our 

jurisprudence under both constitutional provisions expresses a preference that 

police officers secure a warrant before they execute a search." Witt, 223 N.J. 

at 422. To overcome this preference, the State must show by a preponderance 

of evidence that the search falls within one of the well-recognized exceptions 

to the warrant requirement. State v. Manning, 240 N.J. 308, 329 (2020). The 

warrant requirement "is not lightly to be dispensed with, and the burden is on 

the State, as the party seeking to validate a warrantless search, to bring it 

within one of those recognized exceptions." State v. Alston, 88 N.J. 211, 230 

(1981). "One such exception is the automobile exception to the warrant 

requirement." Witt, 223 N.J. at 422. 

Abandoning the "pure exigent-circumstances requirement" it had added 

to the constitutional standard to justify an automobile search in State v. Cooke, 

163 N.J. 657, 671 (2000), as reiterated in State v. Pena-Flores, 198 N.J. 6, 11 

(2009), the Court in Witt declared the exigency requirement was "unsound in 
A-2334-21 10

principle and unworkable in practice," 223 N.J. at 447. But the Court declined 

to adopt the less-stringent federal standard for warrantless searches of a 

vehicle,2returning instead to the standard set forth in Alston. Ibid. (citing 

Alston, 88 N.J. at 233). Thus, the Witt Court announced: "Going forward, 

searches on the roadway based on probable cause arising from unforeseeable 

and spontaneous circumstances are permissible. However, when vehicles are 

towed and impounded, absent some exigency, a warrant must be secured." Id.

at 450; see also Rodriguez, 459 N.J. Super. at 23 (footnote omitted) (stating 

Witt "afford[s] police officers at the scene the discretion to choose between 

searching the vehicle immediately if they spontaneously have probable cause 

to do so, or to have the vehicle removed and impounded and seek a search 

warrant later").

By resurrecting state constitutional safeguards first enunciated in Alston

to the expansive federal interpretation of the automobile exception, the Court 

reasoned, "Alston properly balances the individual's privacy and liberty 

interests and law enforcement's investigatory demands." Witt, 223 N.J. at 447. 

Further, "Alston's requirement of 'unforeseeability and spontaneity,'" does not 

unduly burden law enforcement. Ibid. (quoting Alston, 88 N.J. at 233). By 

2

 "Under federal law, probable cause to search a vehicle 'alone satisfies the 

automobile exception to the Fourth Amendment's warrant requirement.'" Witt, 

223 N.J. at 422 (quoting Maryland v. Dyson, 527 U.S. 465, 467 (1999)).
A-2334-21 11

way of example, the Witt Court stated, "if a police officer has probable cause 

to search a car and is looking for that car, then it is reasonable to expect the 

officer to secure a warrant if it is practicable to do so." Id. at 447-48. Thus, 

the Court "eliminate[d] the concern expressed in Cooke," that police "could 

not sit on probable cause and later conduct a warrantless search, for then the 

inherent mobility of the vehicle would have no connection with a police officer 

not procuring a warrant." Id. at 448, 431-32 (citing Cooke, 163 N.J. at 667-

68).

In the present matter, it is undisputed that police lacked probable cause 

to search the GMC prior to encountering defendant at the condominium 

complex. Nor did probable cause arise during the one-hour-and-seventeenminute surveillance. Because police had only reasonable suspicion, not 

probable cause, to believe the GMC contained criminal contraband, a warrant 

would not have issued at any point during the surveillance. Accordingly, this 

is not a case where police "sat" on probable cause and could have obtained a 

warrant before stopping the car. Probable 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. 

However, prohibiting police from obtaining probable cause "well in 

advance" of a warrantless search is not the sole command of Witt. Probable 
A-2334-21 12

cause pursuant to the post-Witt automobile exception must "aris[e] from 

unforeseeable and spontaneous circumstances." 223 N.J. at 450. We have 

upheld the validity of the warrantless search of an automobile under Witt

where police smelled marijuana emanating from the defendant's vehicle after 

stopping the car for a traffic violation.3 Rodriguez, 459 N.J. Super. at 25. 

Based on our review of the record in Rodriguez, we concluded "the police at 

the roadside had ample probable cause to believe the [vehicle] contained 

additional quantities of marijuana and potentially other evidence of illegal 

activity." Ibid. Unlike the present matter, however, police did not summon a 

K-9 unit to the scene in Rodriguez. 

We are not convinced Witt's holding is limited to probable cause that 

arises after a roadside stop based on a motor vehicle violation, as the motion 

judge seemingly suggested here. The circumstances giving rise to probable 

cause may be unforeseeable and spontaneous following an investigatory stop –

even if police expect to find contraband in the vehicle. We discern no 

constitutionally significant distinction between law enforcement's observations 

3

 Rodriguez was decided prior to the February 22, 2021 enactment of The 

New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace 

Modernization Act, N.J.S.A. 24:6I-31 to -56. Under the Act, an "odor of 

cannabis or burnt cannabis" cannot create a "reasonable articulable suspicion

of a crime" under most circumstances. N.J.S.A. 2C:35-10c(a). 
A-2334-21 13

of criminal activity after a car is stopped for a motor vehicle violation and 

those same observations following an investigatory stop. 

For example, had police observed drugs in plain view upon effecting the 

investigatory stop in this case, the automobile exception readopted by the 

Court in Witt likely would have been satisfied. See, e.g., State v. Gonzales, 

227 N.J. 77, 102-03 (2016). Similar to the officer's plain sniff observations 

after stopping the vehicle we upheld in Rodriguez, 459 N.J. Super. at 25, 

probable cause would have "aris[en] from unforeseeable and spontaneous 

circumstances," Witt, 223 N.J. at 450. Here, police conducted the 

investigatory stop after surveilling the GMC for fewer than two hours, 

following observations the motion judge credited as establishing articulable 

suspicion to stop the car. We disagree with the judge that law enforcement's 

suspicions of drug activity before the stop made the automobile exception 

unavailing. But the validity of the warrantless roadside search of the GMC 

does not end with the Court's holding in Witt. 

In our view, the issue is whether the canine's alert to the presence of 

narcotics under the circumstances presented here changed the equation. For 

guidance, we turn to the Court's subsequent decisions in Dunbar and State v. 

Nelson, 237 N.J. 540 (2019), as informed by the United States Supreme 

Court's decision in Rodriguez v. United States, 575 U.S. 348 (2015). 
A-2334-21 14

According to the federal high court: "Lacking the same close connection to 

roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized 

as part of the officer's traffic mission." Rodriguez, 575 U.S. at 356. Absent 

reasonable and articulable suspicion, the unreasonable extension of a motor 

vehicle stop to conduct a canine sniff constitutes an unreasonable seizure. Id.

at 355. Our Supreme Court adopted this federal standard in Dunbar, 229 N.J. 

at 533-34.

The Court in Dunbar held an officer "does not need reasonable suspicion 

independent from the justification for a traffic stop in order to conduct a 

canine sniff[,]" provided the officer does "not conduct a canine sniff in a 

manner that prolongs a traffic stop beyond the time required to complete the 

stop's mission, unless he [or she] possesses reasonable and articulable 

suspicion to do so." Id. at 540 (citing Rodriguez, 575 U.S. at 357). Beyond 

issuing a ticket, an officer's traffic mission may include checking the driver's 

license, inspecting the vehicle's registration and proof of insurance, and 

ascertaining if there are warrants for the driver's arrest. See Rodriguez, 575 

U.S. at 355; Dunbar, 229 N.J. at 533. Police may only continue the roadside 

detention to summon a K-9 unit if reasonable and articulable suspicion arises 

independently from the reason for conducting the motor vehicle stop, in the 

course of completing the mission of the stop. Dunbar, 229 N.J. at 539. Thus, 
A-2334-21 15

"in the absence of such suspicion, an officer may not add time to the stop." Id.

at 540. "'In determining whether reasonable suspicion exists, a court must 

consider the totality of the circumstances – the whole picture.'" Nelson, 237 

N.J. at 554 (quoting State v. Stovall, 170 N.J. 346, 361 (2002)).

Acting on information provided by the Bureau of Alcohol, Tobacco, and 

Firearms (ATF), the police in Nelson followed the car and pulled it over for 

violating certain traffic laws. Id. at 546-47. Upon stopping the defendant's 

car, the detective "was immediately overwhelmed by the smell of air 

fresheners emanating from the vehicle." Id. at 547. Thirty-seven minutes after 

the defendant refused consent to search, a K-9 unit arrived at the roadside 

scene and the dog alerted to the presence of narcotics in the vehicle. Id. at 

546. 

The Court concluded the thirty-seven-minute delay between the 

defendant's denial of consent to search the car and the K-9 unit's arrival 

"exceeded the time needed to accomplish the tasks." Id. at 554 (internal 

quotation marks omitted). But the Court held police had reasonable suspicion 

to justify the delay in completing the dog sniff based on the totality of several 

factors leading to and during the motor vehicle stop. Id. at 554-55. Those 

factors included: an anonymous tip from the ATF, disclosing a man fitting the

defendant's description would be transporting controlled dangerous substances
A-2334-21 16

on the New Jersey Turnpike; the defendant's "nervous behavior"; the 

defendant's "conflicting accounts of his trip itinerary"; "large bags in the cargo 

hold"; the defendant's "admission of prior narcotics arrests"; and "the 

overwhelming smell of air freshener." Id. at 548. 

In the present matter, reasonable articulable suspicion of criminal 

activity arose prior to the stop. Namely, police suspected defendant of 

engaging in drug activity based on confidential sources and their observations 

during their continuous, same-day surveillance. Police also knew defendant 

had a criminal history, including drug arrests and convictions for weapons 

offenses. Unlike the circumstances in Nelson, however, the officers' 

suspicions were not confirmed by their observations after the stop was 

conducted. Nonetheless, the mission of the stop – an investigation into illegal 

drug activity – remained ongoing until the K-9 unit arrived. In particular, 

because the stop was not based on a motor vehicle infraction, the stop's 

mission did not cease after police conducted "ordinary inquiries incident to 

[the traffic] stop." Rodriguez, 575 U.S. at 355 (alteration in original) (quoting 

Illinois v. Caballes, 543 U.S. 405, 408 (2005)). Instead, the totality of the 

factors that gave rise to reasonable articulable suspicion of drug activity to 

stop the car, justified prolonging the stop until the K-9 unit arrived because the 

dog sniff for suspected narcotics was "reasonably related in scope" to the basis 
A-2334-21 17

for the stop. See Terry v. Ohio, 392 U.S. 1, 19-20 (1968) (recognizing the 

validity of a search and seizure turns on "whether the officer's action was 

justified at its inception, and whether it was reasonably related in scope to the 

circumstances which justified the interference in the first place"). 

However, 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 GMC, police summoned the K-9 unit for the sole purpose of 

developing probable cause. That investigative tool, although validly employed 

under Dunbar and 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. 

Affirmed.