NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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 Superi or Court of New Jersey, Law Division, Camden County, Indictment No. 22- 05

- 1241. Tamar Y. Lerer, Assistant Public Defender, argued t he cause for appellant (Jennifer Nicole Sellitti, Publ ic 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 DIVISIONA- 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 detect ion canines in accordance with the Supreme Court's hol ding 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 ord er denying his motion to compel discovery of records relating to narcotics d etect ion canine "Jocko." We conclude that such records are not per se irrele vant to reliability and probable cause determinations and therefore, the co urt should have first heard the State's motion challenging the expert before de nying defendant's motion for discovery. We reverse and remand for further p roceedings consistent with this opinion.
I. Just before midnight, on January 30, 2022, while pa trolling in his marked canine unit, Voorhees Township police office r Matthew Buchhofer observed a white Ford F-150 leaving a convenience s tore 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 "kno wn narcotics dealer," whoA- 0499

- 23 3 "typically travels with . . . product in order to m ake 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 confro ntational." Officer Buchhofer eventually turned his attention to defend ant, the front seat passenger, and asked for his identification. The o fficer observed that defendant appeared nervous. He was shaking, perspi ring, 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 wal king around the vehicle he observed Jocko's behavior change with "deep brea ths and a head spin," and then scratching at the passenger side door. Consid ering this a positive alert, Officer Buchhofer fully searched the vehicle and it s occupants. He only found contraband on defendant, recovering a loaded revolv er, hollow point rounds, a speed clip, and a small glass jar containing a "roc klike substance," purported to be methamphetamine. He arrested defendant, and a subsequent search of the car yielded a digital scale in the glove compar tment.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 posses sion of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); and s econd-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 w ith the canine team of Officer Buchhofer and Jocko. The State produced th e training information, but it objected to producing the field reports on relev ance grounds. On March 7, 2023 defendant moved to compel producti on of the field reports, "specifically any and all: incident repor ts 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[,] wa s recovered." Defendant's motion was supported by a report author ed by an expert in canine olfaction, John C. Sagebiel, Ph.D. Dr. Sage biel evaluated Jocko's training records as well as the relevant reports fr om 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 th e vehicle; Jocko had a history of giving alerts in the field that did not lead to the discovery ofA- 0499

- 23 5 narcotics; Jocko did not give a consistent positive indication alert; and Jocko's training indicates he had a high odor threshold, ma king 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 tria l court issued an order denying defendant's motion. In an oral decision, t he court relied on the United States Supreme Court's holding in Harris, reasoning that because the State provided the canine's training and certification re cords, "it would be error to require the production of records regarding perform ance in the field." The court also denied the State's motion to bar defenda nt's expert opinion evidence as moot, finding "the motion to compel raise[d] leg al 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 itsA- 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 dec ision to grant or deny a motion to compel will be reversed only where "the c ourt has abused its discretion, or its determination is based on a mist aken understanding of the applicable law." Ibid. We defer to a trial court's factual findings suppor ted by credible evidence but review de novo the court's ap plication of the law to those findings. See State v. Pierre, 223 N.J. 560, 577 (2015). While the matte r before us concerns a review of the trial court's or der denying defendant's motion to compel discovery, we note that a clear qu estion of law is involved

— whether Harris applies, and if so, in what manner i t establishes boundaries on aA- 0499

- 23 7 criminal defendant's right to discovery in New Jers ey police canine search

cases. B. "The Fourth Amendment of the United States Constitu tion and Article I, Paragraph 7 of the New Jersey Constitution, in almo st identical language, protect against unreasonable searches and seizures. " State v. Smart, 253 N.J. 156, 164 (2023) (quoting State v. Nyema, 249 N.J. 5 09, 527 (2022)). As "[w]arrantless seizures and searches are presumptiv ely 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 warra nt, the State bears the burden of proving by a preponderance of the evidenc e 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 r equirement,'" State v. Bryant, 227 N.J. 60, 69 (2016) (alteration in origi nal) (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 c ause to believe that the vehicle contains contraband or evidence of an offen se 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, 233A- 0499

- 23 8 (1981)). In Smart, our Supreme Court explained in detail the greater protection provided by New Jersey's automobile exce ption than that under the Fourth Amendment: "[T]hat enhanced protection deri ves from the extra requirement that the circumstances giving rise to p robable cause be 'unforeseeable and spontaneous'

— in addition to the inherent mobility of the automobile stopped on a roadway. In New Jersey, bo th elements are necessary to justify a warrantless automobile search." 253 N .J. at 171

. New Jersey's probable cause definition is coextensi ve with that under our federal Constitution. Probable cause is a "'pr actical, nontechnical conception' addressing 'the factual and practical c onsiderations 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 particula r 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 "dea ls with probabilities and depends on the totality of the circumstances." Ibi d. (quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)).A- 0499

- 23 9 III. A. With these principles in mind, we consider defendan t's right to discovery of the contested field and health reports under Rul e 3:13 -3(b). To guarantee fair and just trials and promote the search for tru th, 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 limi ts to a defendant's automatic right to broad discovery to keep the proc ess from "transform[ing] . . . into an unfocused, haphazard search for evide nce." Ibid. As such, to be subject to disclosure, a defendant can only seek in formation 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 conseque nce 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 tho se elements (e.g.,A- 0499

- 23 10 confessions, witness's testimony, circumstantial ev idence)." 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 repo rts pursuant to Rule 3:13

- 3(b). His argument assumes that such reports are a lways relevant, and therefore subject to discovery under the rule. The United States Supreme Court's holding in Harris provides us with a framew ork for testing that assumption. 568 U.S. at 237. Harris involved a drug-sniffing canine's alert duri ng a lawful traffic stop, which prompted police to conduct a warrantless sear ch. 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 qual ity of the training. Id. at 242. The trial court denied the defendant's suppre ssion motion, finding the officer had probable cause to search the vehicle, h owever, 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 meanin g ofA- 0499

- 23 11 the particular training and certification, field performance records (including any unverified alert s), and evidence concerning the experience and training of the officer handling the dog, as well as any oth er 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 stat es 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 ca use . . . is 'a fluid concept

— turning on the assessment of probabilities in parti cular 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 ov erstate 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, whe ther 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 assertin g that its standards are too lax or its methods fault y. 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 handle r's) history in the field, although susceptible to the k ind of misinterpretation we have discussed, may sometimes be relevant . . . . [E]ven assuming a dog is genera lly reliable, circumstances surrounding a particular al ert may undermine the case for probable cause. [Id. at 247.] The Court provided further instruction:

[A] probable-cause hearing focusing on a dog's aler t should proceed much like any other. . . . If the St ate has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defen dant has not contested that showing, then the court shou ld 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 requir ed for the State to meet its burden of establishing probable cause for a war rantless search. However, Harris also tells us that field records are not com pletely 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 Rul e 3:13-3(b). Given the holding in Harris, we are not persuaded by defendant's argumen t 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 s niff. 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 dete rmination 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 olf action expert, Dr. Sagebiel, to challenge the reliability of Jocko and Officer Buchhofer. While we express no opinion on Dr. Sagebiel's qualificati ons or the admissibility of his opinions, we conclude, consistent with the Unit ed States Supreme Court'sA- 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 rem anded for further proceedings consistent with this opinion. We do no t retain jurisdiction.