NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0499-23

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v. 

JUSTIN MORGAN, 

 Defendant-Appellant. 

________________________

Argued April 9, 2024 – Decided July 23, 2024 

Motion for reconsideration granted. 

Resubmitted July 26, 2024 – Decided August 21, 2024 

Before Judges Sumners, Smith and O'Connor. 

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Camden County, 

Indictment No. 22-05-1241.

Tamar Y. Lerer, Assistant Public Defender, argued the 

cause for appellant (Jennifer Nicole Sellitti, Public 

Defender, attorney; Tamar Y. Lerer, of counsel and on 

the briefs). 

Kevin J. Hein, Assistant Prosecutor, argued the cause 

for respondent (Grace C. MacAulay, Camden County 

Prosecutor, attorney; Kevin J. Hein, of counsel and on 

the brief). 

APPROVED FOR PUBLICATION 

July 23, 2024 

APPELLATE DIVISION 
A-0499-23 2 

The opinion of the court was delivered by 

SMITH, J.A.D. 

This appeal presents a question of first impression regarding when the 

State may be compelled to provide field and health reports of narcotics 

detection canines in accordance with the Supreme Court's holding in Florida v. 

Harris, 568 U.S. 237 (2013). We granted defendant Justin Morgan leave to 

appeal from the trial court's September 1, 2023 order denying his motion to 

compel discovery of records relating to narcotics detection canine "Jocko." 

We conclude that such records are not per se irrelevant to reliability and 

probable cause determinations and therefore, the court should have first heard 

the State's motion challenging the expert before denying defendant's motion 

for discovery. We reverse and remand for further proceedings consistent with 

this opinion. 

I.

Just before midnight, on January 30, 2022, while patrolling in his 

marked canine unit, Voorhees Township police officer Matthew Buchhofer 

observed a white Ford F-150 leaving a convenience store with a poorly lit 

license plate, in violation of N.J.S.A. 39:3-61(k). The officer illuminated the 

plate with the headlights of the police vehicle and conducted a plate inquiry, 

which revealed the vehicle was registered to a "known narcotics dealer," who 
A-0499-23 3 

"typically travels with . . . product in order to make roadside deliveries." The 

officer then conducted a motor vehicle stop. 

When Officer Buchhofer approached the vehicle, the driver, who was 

also the registered owner, became "instantly confrontational." Officer 

Buchhofer eventually turned his attention to defendant, the front seat 

passenger, and asked for his identification. The officer observed that 

defendant appeared nervous. He was shaking, perspiring, breathing heavily, 

and not making eye contact when answering questions. 

Officer Buchhofer asked the driver and defendant to exit the vehicle so 

that he could conduct a "narcotics sniff . . . with [his canine] partner, Jocko." 

The canine team began the sniff at the rear bumper with the officer giving 

Jocko the starting command "patches on." While walking around the vehicle 

he observed Jocko's behavior change with "deep breaths and a head spin," and 

then scratching at the passenger side door. Considering this a positive alert, 

Officer Buchhofer fully searched the vehicle and its occupants. He only found 

contraband on defendant, recovering a loaded revolver, hollow point rounds, a 

speed clip, and a small glass jar containing a "rocklike substance," purported 

to be methamphetamine. He arrested defendant, and a subsequent search of 

the car yielded a digital scale in the glove compartment. 
A-0499-23 4 

A grand jury indicted defendant with second-degree unlawful possession 

of a weapon, N.J.S.A. 2C:39-5(b)(1); fourth-degree possession of hollow nose 

bullets, N.J.S.A 2C:39-3(f)(1); third-degree possession of a controlled 

dangerous substance, N.J.S.A. 2C:35-10(a)(1); and second-degree certain 

persons not to have a weapon, N.J.S.A. 2C:39-7(b)(1). 

Pursuant to Rule 3:13-3, defendant sought discovery related to all 

training information and field reports associated with the canine team of 

Officer Buchhofer and Jocko. The State produced the training information, but 

it objected to producing the field reports on relevance grounds. 

On March 7, 2023 defendant moved to compel production of the field 

reports, "specifically any and all: incident reports and canine activity reports 

involving Jocko, or alternatively a field log of Jocko’s sniffs done at scenes, 

the date and time of the deployments, whether they resulted in positive or 

negative indications, and what[,] if anything[,] was recovered." 

Defendant's motion was supported by a report authored by an expert in 

canine olfaction, John C. Sagebiel, Ph.D. Dr. Sagebiel evaluated Jocko's 

training records as well as the relevant reports from defendant's arrest and 

opined that Jocko's alert was false. Dr. Sagebiel cited facts in the record to 

support his opinion: no narcotics were found in the vehicle; Jocko had a 

history of giving alerts in the field that did not lead to the discovery of 
A-0499-23 5 

narcotics; Jocko did not give a consistent positive indication alert; and Jocko's 

training indicates he had a high odor threshold, making it unlikely the alert on 

the car was due to residual odor. 

The State opposed the motion and cross-moved to bar Dr. Sagebiel's 

testimony and his report. After argument, the trial court issued an order 

denying defendant's motion. In an oral decision, the court relied on the United 

States Supreme Court's holding in Harris, reasoning that because the State 

provided the canine's training and certification records, "it would be error to 

require the production of records regarding performance in the field." The 

court also denied the State's motion to bar defendant's expert opinion evidence 

as moot, finding "the motion to compel raise[d] legal issues, rather than factual 

issues." 

Defendant argues the following points on appeal: 

THE DEFENSE IS ENTITLED TO THE 

DISCOVERY REQUESTED, WHICH THE STATE 

IS REQUIRED TO DISCLOSE UNDER OUR 

COURT RULES, AND WHICH IS ESSENTIAL TO 

DETERMINE THE RELIABILITY OF THE DOG'S 

PERCEIVED ALERT. 

A. The Reliability of a Supposed Canine Alert is 

Essential to Assessing Whether the Alert 

Provided Probable Cause to Search. 

1. The reliability of a supposed canine 

alert is dependent on a number of 

factors, including the quality of its 
A-0499-23 6 

training and the behavior of its 

handler. 

2. Because not all dogs are reliable, not 

all handlers are reliable, and the 

perception of an alert is subject to 

manipulation, a dog’s field 

performance is particularly important 

in determining the value of a supposed 

alert. 

B. The Defendant is Entitled to the Discovery 

Sought Under our Court Rules and Case 

Law. 

II. 

A.

We "generally defer to a trial court's disposition of discovery matters." 

State v. Ramirez, 252 N.J. 277, 298 (2022) (quoting State v. Brown, 236 N.J. 

497, 521 (2019)). Accordingly, a trial court's decision to grant or deny a 

motion to compel will be reversed only where "the court has abused its 

discretion, or its determination is based on a mistaken understanding of the 

applicable law." Ibid. We defer to a trial court's factual findings supported by 

credible evidence but review de novo the court's application of the law to those 

findings. See State v. Pierre, 223 N.J. 560, 577 (2015). While the matter 

before us concerns a review of the trial court's order denying defendant's 

motion to compel discovery, we note that a clear question of law is involved—

whether Harris applies, and if so, in what manner it establishes boundaries on a 
A-0499-23 7 

criminal defendant's right to discovery in New Jersey police canine search 

cases. 

B.

"The Fourth Amendment of the United States Constitution and Article I, 

Paragraph 7 of the New Jersey Constitution, in almost identical language, 

protect against unreasonable searches and seizures." State v. Smart, 253 N.J. 

156, 164 (2023) (quoting State v. Nyema, 249 N.J. 509, 527 (2022)). As 

"[w]arrantless 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), "when the police act without a warrant, the State bears the 

burden of proving by a preponderance of the evidence not only that the search 

or seizure was premised on probable cause, but also that it 'f[ell] within one of 

the few well-delineated exceptions to the warrant requirement,'" State v. 

Bryant, 227 N.J. 60, 69 (2016) (alteration in original) (quoting State v. 

Johnson, 193 N.J. 528, 552 (2008)). 

The automobile exception to the warrant requirement authorizes a 

warrantless search "when the police have probable cause to believe that the 

vehicle contains contraband or evidence of an offense and the circumstances 

giving rise to probable cause are unforeseeable and spontaneous." State v. 

Witt, 223 N.J. 409, 447 (2015) (citing State v. Alston, 88 N.J. 211, 233 
A-0499-23 8 

(1981)). In Smart, our Supreme Court explained in detail the greater 

protection provided by New Jersey's automobile exception than that under the 

Fourth Amendment: "[T]hat enhanced protection derives from the extra 

requirement that the circumstances giving rise to probable cause be 

'unforeseeable and spontaneous'—in addition to the inherent mobility of the 

automobile stopped on a roadway. In New Jersey, both elements are necessary 

to justify a warrantless automobile search." 253 N.J. at 171. 

New Jersey's probable cause definition is coextensive with that under 

our federal Constitution. Probable cause is a "'practical, nontechnical 

conception' addressing 'the factual and practical considerations of everyday 

life on which reasonable and prudent men, not legal technicians, act.'" State v. 

Basil, 202 N.J. 570, 585 (2010) (quoting Illinois v. Gates, 462 U.S. 213, 231 

(1983)). A probable cause search "requires 'a fair probability that contraband 

or evidence of a crime will be found in a particular place.'" State v. Chippero, 

201 N.J. 14, 27 (2009) (quoting U.S. v. Jones, 994 F.2d 1051, 1056 (3d Cir. 

1993)). We remain mindful that probable cause "deals with probabilities and 

depends on the totality of the circumstances." Ibid. (quoting Maryland v. 

Pringle, 540 U.S. 366, 371 (2003)). 
A-0499-23 9 

III. 

A.

With these principles in mind, we consider defendant's right to discovery 

of the contested field and health reports under Rule 3:13-3(b). To guarantee 

fair and just trials and promote the search for truth, our court rules provide a 

criminal defendant with broad pre-trial discovery. State v. Scoles, 214 N.J. 

236, 251-52 (2013). "As codified in Rule 3:13-3, New Jersey has a tradition of 

what is often described as an 'open file' model of reciprocal pretrial criminal 

discovery." State v. Arteaga, 476 N.J. Super 36, 53 (App. Div. 2023) (quoting 

Ramirez, 252 N.J. at 295). However, there are limits to a defendant's 

automatic right to broad discovery to keep the process from "transform[ing] 

. . . into an unfocused, haphazard search for evidence." Ibid. As such, to be 

subject to disclosure, a defendant can only seek information relevant to the 

issues in the case. Ibid. 

N.J.R.E. 401 defines relevant evidence as "evidence having a tendency 

in reason to prove or disprove any fact of consequence to the determination of 

the action." "In criminal matters, relevance from the prosecution's standpoint 

is generally determined by the substantive elements of the offense, while 

relevance from the defendant's perspective depends on both the elements of the 

offense and the prosecution's method of proving those elements (e.g., 
A-0499-23 10

confessions, witness's testimony, circumstantial evidence)." Biunno, 

Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E. 401 

(2022-2023). 

Defendant argues that the trial court erred when it declined to order the 

State's production of Jocko's field and health reports pursuant to Rule 3:13-

3(b). His argument assumes that such reports are always relevant, and 

therefore subject to discovery under the rule. The United States Supreme 

Court's holding in Harris provides us with a framework for testing that 

assumption. 568 U.S. at 237. 

Harris involved a drug-sniffing canine's alert during a lawful traffic stop, 

which prompted police to conduct a warrantless search. The police seized 

various ingredients for making methamphetamine. Id. at 240. The canine 

officer testified at the suppression hearing about his and his canine's extensive 

prior and ongoing training, and certifications. Id. at 241. On crossexamination, the defendant did not contest the quality of the training. Id. at 

242. The trial court denied the defendant's suppression motion, finding the 

officer had probable cause to search the vehicle, however, the Florida Supreme 

Court reversed, holding an alert, with nothing more, could not establish 

probable cause. It further held: 

The State must present . . . the dog's training and

certification records, an explanation of the meaning of 
A-0499-23 11

the particular training and certification, field 

performance records (including any unverified alerts), 

and evidence concerning the experience and training

of the officer handling the dog, as well as any other 

objective evidence known to the officer about the 

dog’s reliability.

[Id. at 242-43 (internal citation omitted).] 

On appeal, the United States Supreme Court rejected Florida's brightline approach to probable cause. It held that states cannot be required "to 

provide an exhaustive set of records, including the dog's performance in the 

field, to establish the dog's reliability," as such a rule "is inconsistent with the 

'flexible common-sense standard' of probable cause." Ibid. (quoting Gates, 

462 U.S. at 239). The Court stated, "[p]robable cause . . . is 'a fluid concept—

turning on the assessment of probabilities in particular factual contexts—not 

readily, or even usefully, reduced to a neat set of legal rules.'" Id. at 244 

(quoting Gates, 462 U.S. at 235). 

The Court also noted that field data may greatly overstate a dog’s "false 

positives," and that "[t]he better measure of a dog’s reliability . . . comes away 

from the field, in controlled testing environments." Id. at 246. "[E]vidence of 

a dog’s satisfactory performance in a certification or training program can 

itself provide sufficient reason to trust his alert. . . . [and] a court can presume 

(subject to any conflicting evidence offered) that the dog's alert provides 

probable cause to search." Id. at 246-47 (emphasis added). 
A-0499-23 12

The Court explained: 

[a] defendant . . . must have an opportunity to 

challenge such evidence of a dog's reliability, whether 

by cross-examining the testifying officer or by 

introducing his own fact or expert witnesses. The 

defendant, for example, may contest the adequacy of a 

certification or training program, perhaps asserting 

that its standards are too lax or its methods faulty. So 

too, the defendant may examine how the dog (or 

handler) performed in the assessments made in those

settings. Indeed, evidence of the dog's (or handler's) 

history in the field, although susceptible to the kind of 

misinterpretation we have discussed, may sometimes 

be relevant . . . . [E]ven assuming a dog is generally 

reliable, circumstances surrounding a particular alert 

may undermine the case for probable cause. 

[Id. at 247.] 

The Court provided further instruction: 

[A] probable-cause hearing focusing on a dog's alert 

should proceed much like any other. . . . If the State 

has produced proof from controlled settings that a dog 

performs reliably in detecting drugs, and the defendant 

has not contested that showing, then the court should 

find probable cause. If in contrast, the defendant has 

challenged the State's case, then the court should 

weigh the competing evidence. 

[Id. at 247-48.] 

Harris informs us that field records are not required for the State to meet 

its burden of establishing probable cause for a warrantless search. However, 

Harris also tells us that field records are not completely barred from 

consideration. Where a defendant challenges a dog's training and certification, 
A-0499-23 13

field reports may be subject to discovery under Rule 3:13-3(b). Given the 

holding in Harris, we are not persuaded by defendant's argument that the field 

reports are discoverable as of right under Rule 3:13-3(b). The rule's broad 

reach cannot establish a right to the reports until defendant establishes their 

relevance. We turn to that question on the record before us. 

B.

Dr. Sagebiel's expert report challenged both Jocko's training and the 

officer's actions as the dog's handler during the sniff. Applying the principles 

outlined in Harris, we conclude that Jocko's field and health records could be 

relevant to the reliability of his alert during the car stop if defendant is 

permitted to avail himself of that expert opinion. Jocko's reliability goes 

directly to Officer Buchhofer's probable cause determination for the 

warrantless search, which is relevant to any motion defendant elects to file as 

the litigation proceeds. See Harris, 568 U.S. at 247 (stating "evidence of the 

dog's (or handler's) history in the field, although susceptible to the kind of 

misinterpretation we have discussed, may sometimes be relevant"). 

The record shows defendant proffered the canine olfaction expert, Dr. 

Sagebiel, to challenge the reliability of Jocko and Officer Buchhofer. While 

we express no opinion on Dr. Sagebiel's qualifications or the admissibility of 

his opinions, we conclude, consistent with the United States Supreme Court's 
A-0499-23 14

holding in Harris, that the trial court should have considered the State's motion 

to bar him. 

We remand for the trial court to consider the State's motion to bar 

defendant's expert on the merits. Reversed and remanded for further 

proceedings consistent with this opinion. We do not retain jurisdiction.