SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4142-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN J. CANTALUPO, a/k/a

JOHN J. CANTALUPO, JR.,

Defendant-Appellant.

______________________________

Argued December 19, 2018 – Decided

Before Judges Alvarez and Mawla.

On appeal from Superior Court of New Jersey, Law 

Division, Ocean County, Indictment No. 13-07-1772.

Thomas M. Cannavo argued the cause for appellant 

(Steven W. Hernandez, attorney; Thomas M. Cannavo, 

of counsel and on the brief). 

William K. Meighan, Senior Assistant Prosecutor, 

argued the cause for respondent (Bradley D. Billhimer, 

Ocean County Prosecutor, attorney; Samuel 

Marzarella, Chief Appellate Attorney, of counsel; 

William K. Meighan, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

January 8, 2019
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PER CURIAM

Defendant John J. Cantalupo appeals from a March 29, 2017 order after a 

bench trial in which he was found guilty of possession of a controlled dangerous 

substance (CDS) in an automobile, N.J.S.A. 39:4-49.1; driving while intoxicated 

(DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; failure to wear a 

seatbelt, N.J.S.A. 39:3-76.2(f); failure to observe traffic signals, N.J.S.A. 39:4-

81; and third-degree possession of Phencyclidine (PCP), N.J.S.A. 2C:35-

10(a)(1). As part of his sentence, defendant received three years of probation 

with 180 days in jail, but the court suspended 150 days of the jail time imposed. 

We affirm the convictions, but reverse and remand the sentence in accordance 

with this opinion.

The following facts are taken from the record. On January 12, 2013, Toms 

River Police Sergeant Daniel Sysol observed a vehicle operated by defendant 

moving unusually slow and well below the speed limit, traveling southbound on 

Vermont Avenue toward the intersection with Cox Cro Road. Sysol followed

the vehicle, which stopped briefly at a red light before making an illegal lefthand turn on red. 

When Sysol stopped the vehicle he noted defendant was not wearing his 

seatbelt. Defendant was moving slowly, fumbled his credentials, spoke with 
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slurred speech, and his pupils were unusually constricted. Sysol requested 

defendant exit the vehicle and observed he was moving slowly and having 

difficulty standing and walking without falling or swaying from side-to-side. 

Sysol requested a Drug Recognition Expert ("DRE") assist in the investigation. 

Officer Steven Schwartz, a DRE, responded. He also observed 

defendant's pupils were constricted and noted he had difficulty maintaining his 

balance. Additionally, he detected a strong chemical odor on defendant's breath. 

Schwartz requested defendant perform a field sobriety test. 

Schwartz had defendant perform a Horizontal Gaze Nystagmus ("HGN") 

test. Schwartz testified defendant's eyes did not follow his finger smoothly and 

his body swayed from side-to-side, which were signs of impairment. Schwartz 

next conducted a walk-and-turn-test, which defendant also struggled to perform. 

Defendant stumbled several times, had difficulty maintaining his balance, held 

his arms out horizontally for balance, failed to touch his toe to heel as he took 

each step, and took more steps than directed. Schwartz also directed defendant 

to perform a one-leg-stand test, but he was unable to raise his foot off the ground 

without losing balance. 
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Defendant was arrested for DWI, read his Miranda1 warnings, and placed 

in a police vehicle. Prior to transporting defendant's vehicle from the scene, 

Schwartz illuminated its interior and observed a small glass vial positioned 

between the center console and the driver's seat. Schwartz testified the vial 

looked similar to an eyedropper glass with a black cap, and believed it contained 

CDS based on its appearance and the chemical odor on defendant's breath. 

Schwartz observed the contents of the vial were a brown liquid substance with 

floating vegetative matter. Subsequent laboratory testing on the vial revealed it 

contained PCP. 

At the police station, defendant was read his Miranda warnings a second 

time, and signed a waiver form. An Alcotest indicated a blood alcohol content 

of 0.0. As a result, Schwartz performed a full DRE to determine the source of 

defendant's impairment. He conducted another HGN test, which defendant 

failed. He also conducted a lack of convergence ("LOC") test where defendant 

was instructed to follow the officer's fingertip as it was moved toward 

defendant's nose. Defendant's eyes remained focused straight ahead and did not 

converge on the officer's fingertip, which was a sign of intoxication. 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
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Defendant was also asked to stand with his feet together, close his eyes, 

tilt his head backward, and estimate the passage of thirty seconds without 

counting aloud. Although defendant was able to count for twenty-seven 

seconds, he swayed in a circular motion throughout the test. 

Schwartz conducted another one-leg-stand test during which defendant 

failed to maintain his balance. He also performed a dark room test to observe 

how defendant's pupils adjusted to light. Defendant's pupil constriction was 

slow. Defendant's blood pressure was elevated, and his body temperature was 

below normal during the testing. However, his muscle tone was normal and he 

showed no signs of injection sites or drug residue in the mouth or nose.

Schwartz interviewed defendant as a part of the DRE. He testified 

defendant still had a chemical odor on his breath, spoke in slurred speech, and 

admitted to smoking a cigarette dipped in PCP approximately fifteen minutes 

before he was stopped. Defendant also admitted he had taken Percocet earlier 

in the day because he was experiencing shoulder pain. Defendant consented to 

providing a urine sample, which tested positive for oxycodone and PCP. 

We next recite the extensive pre-trial timeline and motion practice, which 

occurred in this case, because it bears on the issues raised in the appeal. 

Defendant incurred the motor vehicle charges in January 2013, and was indicted 
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for the drug possession charge in July 2013. On July 25, 2013, the State offered 

to recommend probation with 364 days in jail, in return for defendant's entry of 

a guilty plea with respect to the DWI and CDS charges. Defendant did not enter 

into a plea and was subsequently arraigned in September 2013. 

On June 23, 2014, the State hand-delivered the urinalysis report to 

defendant. In January 2015, defendant filed a motion to dismiss the indictment 

and the charges on speedy trial grounds. The motion was denied in February 

2015.

On March 18, 2015, the State requested a plea cutoff date and a trial date. 

Five days later, defendant requested the State agree to a conditional plea, which 

would have allowed him to plead guilty to the indictable offense while 

preserving his right to appeal the denial of the speedy trial motion. The State 

rejected the request. 

In April 2015, defendant filed a motion to stay the imposition of the

sentence and to set bail in the event of a conviction. In May 2015, defense 

counsel advised the court defendant would likely plead guilty and requested the 

motion be adjourned until after the plea. 

On May 18, 2015, defendant retained new counsel, who filed a motion to 

suppress the urinalysis and field sobriety tests the following day. The court 
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heard extensive testimony on the motion on October 15, October 28, and 

November 12, 2015, and ultimately denied it on December 1, 2015. 

On January 4, 2016, defendant renewed the request for a conditional plea, 

which the State rejected. On January 29, 2016, he filed a motion to compel the

conditional plea over the State's objection, which the court denied on February 

22, 2016. 

A plea cutoff date was set for March 15, 2016, and a trial date was set for 

September 13, 2016. A month before trial, defendant moved to sever the motor 

vehicle offenses from the indictable charge. A day later he filed another motion 

raising seven arguments, none of which are raised on appeal. 

On September 9, 2016, defendant made a third request for a conditional 

plea, which was rejected. Because a new trial judge was assigned to the case, 

the trial date was converted into a status conference with that judge, who set 

trial for October 25, 2016. 

On September 15, 2016, defendant requested an adjournment of the trial 

because his expert was unavailable to testify. On September 20, 2016, he filed 

a motion for reconsideration of the conditional plea and the speedy trial 

determinations. The motions were argued on October 11 and October 14, and 

denied on October 26, 2016. 
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Defendant filed a motion for leave to appeal from the denial of 

reconsideration. We denied the motion on December 19, 2016. 

Defendant waived his right to a jury trial. The trial commenced in 

February 2017 and continued into March 2017. The trial judge found defendant 

guilty on all charges and sentenced defendant in May 2017. This appeal 

followed.

Defendant raises the following points:

POINT I – THE LAW DIVISION ERRED IN 

DENYING THE INITIAL SPEEDY TRIAL 

DISMISSAL MOTION. THUS, ALL CHARGES 

SHOULD BE DISMISSED.

POINT II – EVEN IF THE INITIAL SPEEDY TRIAL 

MOTION WERE CORRECTLY DENIED, THE 

ADDITIONAL DELAY DUE TO THE STATE'S 

ARBITRARY REFUSAL TO ALLOW A 

CONDITIONAL PLEA VIOLATED DEFENDANT'S 

SIXTH AMENDMENT AND ART. 1, PAR. 10 

SPEEDY TRIAL RIGHTS, MANDATING 

DISMISSAL OF ALL CHARGES WITH PREJUDICE. 

POINT III – GIVEN THE LACK OF REASONABLE 

SUSPICION TO PERFORM PSYCHOPHYSICAL 

TESTS AT THE SCENE PURSUANT TO STATE V. 

BERNOKEITS, THE LAW DIVISION ERRED IN 

FAILING TO SUPPRESS ALL EVIDENCE SEIZED 

OR OBSERVED AS FRUIT OF THE POISONOUS 

TREE. THUS, DEFENDANT SHOULD BE 

ACQUITTED OF ALL CHARGES ARISING AFTER 

THE MOTOR VEHICLE STOP.
9

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POINT IV – THE LAW DIVISION ERRED IN 

DENYING THE MOTION TO SUPPRESS THE CDS 

FOUND IN THE MOTOR VEHICLE UNDER THE 

DOCTRINE OF PLAIN VIEW. THUS, THE 

DEFENDANT MUST BE ACQUITTED OF THIRD[-]

DEGREE CDS POSSESSION. 

POINT V – THE LAW DIVISION ERRED IN 

DENYING THE MOTION TO SUPPRESS THE 

URINE TEST RESULTS AS A WARRANTLESS 

SEARCH INCIDENT TO ARREST.

POINT VI – THE LAW DIVISION ERRED IN 

DENYING THE MOTION TO SUPPRESS THE 

WARRANTLESS SEIZURE AND TESTING OF 

DEFENDANT'S URINE PURSUANT TO EXIGENT 

CIRCUMSTANCES. 

I.

Defendant challenges the trial court's denial of his motions to dismiss. He 

argues the State violated his right to a speedy trial because nine months elapsed 

before the State provided the urinalysis. 

We owe no special deference to the "trial court's interpretation of the law 

and the legal consequences that flow from established facts." Manalapan Realty, 

LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). However, we will 

reverse the denial of a motion to dismiss a complaint on the grounds it violates 

a defendant's constitutional right to a speedy trial only if it is "clearly 
10 A-4142-16T2

erroneous." State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009) (citing

State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)). 

The Sixth Amendment of the United States Constitution affords a 

defendant the right to a speedy trial on criminal charges; through the Due 

Process Clause of the Fourteenth Amendment, that right is applicable in state 

prosecutions. Klopfer v. North Carolina, 386 U.S. 213, 222-26 (1967); see State 

v. Szima, 70 N.J. 196, 200-01 (1976). The speedy-trial right protects a 

defendant's interest in minimizing "pretrial incarceration," the accused's pretrial 

"anxiety and concern," and delay that impairs the ability to present a defense. 

Barker v. Wingo, 407 U.S. 514, 532-33 (1972). Alleged violations of the 

speedy-trial right are assessed by balancing four factors set forth in Barker, 

which "requires the court to consider: (1) the length of the delay, (2) the reasons 

for the delay, (3) whether and how defendant asserted his speedy trial right, and 

(4) the prejudice to defendant caused by the delay." State v. Townsend, 186 N.J. 

473, 487 (2006); see also Barker, 407 U.S. at 530-34.

In applying the four-part test, "[n]o single factor is a necessary or 

sufficient condition to the finding of a deprivation of the right to a speedy trial." 

Tsetsekas, 411 N.J. Super. at 10 (citing Barker, 407 U.S. at 533). "Rather, the 

factors are interrelated," and a fact-sensitive analysis is necessary so that each 
11 A-4142-16T2

factor is "considered in light of the relevant circumstances of each particular 

case." Ibid. The significance of the length of delay will depend upon the factual 

circumstances of the particular case, including the nature of the proceedings. 

Barker, 407 U.S. at 530-31. Additionally:

Closely related to length of delay is the reason 

the government assigns to justify the delay. Here, too, 

different weights should be assigned to different 

reasons. A deliberate attempt to delay the trial in order 

to hamper the defense should be weighted heavily 

against the government. A more neutral reason such as 

negligence or overcrowded courts should be weighted 

less heavily but nevertheless should be considered since 

the ultimate responsibility for such circumstances must 

rest with the government rather than with the defendant. 

Finally, a valid reason, such as a missing witness, 

should serve to justify appropriate delay.

[Id. at 531.] 

Here, defendant's argument is solely related to the length of the delay 

prong of the Barker test. Defendant does not dispute the material facts of the 

case, and instead asserts the court misinterpreted the applicable law. 

The trial court found as follows:

In the case at hand, [d]efendant was indicted in 

July 2013, [nineteen] months ago. The State provided 

discovery to the defense on July 16, 2013. Arraignment 

was held September 3, 2013, at which point the defense 

asserts it informed the State that they were missing 

urinalysis reports. The State hand-delivered those 

reports on June 23, 2014. Thus, the reports were 
12 A-4142-16T2

initially requested in September 2013[,] and were 

provided nine months later, in June 2014.

At oral argument, the prosecutor relied primarily 

on her brief. She asserted that she received a letter from 

defense counsel in November 2013[,] requesting 

additional discovery, and that the next court date was 

adjourned because the defendant wanted more time to 

prepare. The prosecutor also noted that a formal 

discovery request sent by defense counsel in January 

2014[,] never mentioned an outstanding urinalysis 

report.

Although defense counsel argued that he does not 

base his motion solely upon the delay in obtaining the 

urinalysis report, his claim does in fact center on that 

report. Defense counsel obtained other discovery items 

[he] requested during the time [he] waited for the 

urinalysis report. In the view of this [c]ourt, nine 

months is not an excessively long time to wait for the 

results of a laboratory test, as laboratories can often 

take several months to issue their reports.

The trial court's fact-sensitive findings were sound and not clearly 

erroneous. The court determined the delay in the return of the urinalysis results 

was not excessive by acknowledging the pace at which such results are generally 

returned can be unpredictable. Defendant cites no legal basis for us to conclude 

the court erred as a matter of law.

Next, defendant argues his speedy-trial right was violated because the 

State was obligated to accept his request for a conditional plea. He asserts "the 

conditional plea procedure is designed to prevent waste of defense, State[,] and 
13 A-4142-16T2

judicial resources on needless trial[,]" and "the delay and expense of forcing a 

trial with experts is the very harm and harassment of defendants which 

constitutes prejudice in the speedy trial context." Defendant claims the court 

should have "relaxed the conditional plea rule and allowed the procedure over 

the State's objection and that the State's decision to reject a conditional plea was 

arbitrary and prejudicial." He argues the length and reason for delay prongs of 

the Barker test are satisfied because the delay in excess of one year was 

attributable to the State, which compelled him to file three requests for a 

conditional plea. 

"Generally, a guilty plea constitutes a waiver of all issues which were or 

could have been addressed by the trial judge before the guilty plea." State v. 

Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). The waiver even applies 

to claims of certain constitutional violations. State v. Knight, 183 N.J. 449, 470 

(2005) (citing State v. Crawley, 149 N.J. 310, 316 (1997)). However, there are 

generally only three exceptions to the waiver rule. Id. at 471; see State v. 

Wakefield, 190 N.J. 397, 417 n.1 (2007). Pertinent here, is the exception which 

permits a defendant to appeal adverse decisions specifically reserved by a 

conditional guilty plea entered in accordance with Rule 3:9-3(f). Knight, 183 

N.J. at 471.
14 A-4142-16T2

Rule 3:9-3(f) requires that a defendant satisfy several conditions before a 

conditional guilty plea can be accepted. "[A] defendant may plead guilty while 

preserving an issue for appellate review only with the 'approval of the court and 

the consent of the prosecuting attorney.'" State v. Gonzalez, 254 N.J. Super. 

300, 304 (App. Div. 1992) (emphasis added) (quoting R. 3:9-3(f)). This 

reservation of "the right to appeal from the adverse determination of any 

specified pretrial motion" must be placed "on the record." R. 3:9-3(f). The Rule 

imposes no affirmative obligation on the State to accept an offer of a conditional 

guilty plea and does not permit the court to compel acceptance of such a plea 

over the State's objection. Ibid.

Here, the trial court addressed the issue and found as follows:

This court is bound by Rule 3:9-3(f). A 

conditional plea will only be accepted if the court 

approves it and the prosecutor trying the case has no 

objection. It has been made abundantly clear through 

plea negotiations, briefs, and oral arguments that the 

State is not willing to accept a conditional plea. The 

State has explicitly made clear that they wish to proceed 

to trial or alternatively accept a non-conditional plea. 

The court is guided by State v. Giddings, in that while 

the type of motion the [d]efendant seeks to reserve is 

the purpose of R[ule] 3:9-3(f) the court will not find it 

so unique as to excuse clear failure to comply with the 

rule.

This court understands the [d]efendant's request 

pursuant to R[ule] 1:1-2[,] but determines that R[ule]
15 A-4142-16T2

3:9-3(f) is explicitly accepted. The [d]efendant does 

bring forth cases in which this rule was relaxed but the 

court agrees with the State that these cases are not 

applicable to the [S]uperior [C]ourt's decisions. Many 

of the cases cited by the [d]efendant refer to what 

happened due to the lack of a conditional plea as

opposed to enforcing a conditional plea upon the State. 

As such, the rule remains explicitly accepted that unless 

both the court and the Prosecutor agree to a conditional 

plea, a conditional plea cannot be created while the 

Prosecutor objects.

On reconsideration the court elaborated further and stated

the court is not persuaded that the New Jersey Court 

Rules grant[] the [c]ourt the authority to compel a 

conditional plea. In fact, the court acknowledges that 

any attempt to compel the State into acceptance of a 

conditional plea would be an improper invasion into the 

realm of the executive and a breach of the separation of 

powers doctrine. Accordingly, the [c]ourt finds the 

defendant's argument is without sufficient legal 

authority or merit.

Additionally, this court has found no legal 

authority which would allow defendant to plea openended to all his charges and reserve his right to argue 

his speedy trial motion on appeal. The court 

acknowledges the ruling in Knight, which provided 

only three exceptions to the general rule that all of a 

defendant's constitutional challenges are waived upon 

the entry of an open-ended guilty plea. The Knight

exceptions are: [a]ppeals to the denial of Fourthamendment based motions, appeals to the denial of 

admission into a pretrial intervention program, and 

appeals of issues that are preserved via the conditional 

plea process. The court acknowledges that no 
16 A-4142-16T2

conditional plea has been offered by the State nor can 

be compelled in this case.

We agree with the court's assessment. The law cited by defendant 

pertained to instances where we relaxed Rule 3:9-3(f), pursuant to Rule 1:1-2, 

to permit defendants to raise issues on appeal which would otherwise have been 

prohibited for failure to enter a conditional plea. We did not relax the 

requirement that consent from the State and approval from the court were 

necessary under Rule 3:9-3(f) for a conditional plea. See State v. J.M., 182 N.J. 

402, 410 (2005).

Since the State was not required to agree to a conditional plea, and the 

trial court was not required to accept one over the State's objection, it follows 

that defendant's speedy-trial rights were not violated. Indeed, as the trial court 

noted:

The State's refusal to consent to a conditional plea 

should not constitute an unreasonable delay of trial 

requiring dismissal. The court notes that the State has 

requested trial dates on [four] separate occasions, 

however each time trial is scheduled the defendant 

submits another motion. This should not constitute a 

delay by the State. The court does note that the delay 

attributable to [the prior judge]'s departure from the 

bench cannot be held against the defendant because it 

was not the defendant who caused this delay. The same 

can be said of the State, in that regard, therefore the 

delay caused by [the judge]'s departure cannot [b]e held 

against the State either. The court cannot force the 
17 A-4142-16T2

State into acceptance of a conditional plea, and the 

court is not persuaded that the State's refusal to grant 

consent constitutes an unreasonable delay for speedy 

trial purposes.

For these reasons, the trial court's denial of defendant's request was not an 

abuse of discretion. Likewise, the court's failure to find a violation of 

defendant's speedy trial rights was not clearly erroneous. 

II.

We next address defendant's challenge to the trial court's denial of the

motion to suppress the evidence seized from the DWI stop and his person. We 

begin by recognizing that "[o]ur standard of review is whether there is sufficient 

credible evidence present in the record to uphold the findings of the Law 

Division." State v. Dispoto, 383 N.J. Super. 205, 217 (App. Div. 2006) (citing 

State v. Johnson, 42 N.J. 146, 162 (1964)). "We review the trial court's findings 

of fact on a motion to suppress deferentially, affirming whenever they are 

supported by sufficient credible evidence in the record." State v. Dunbar, 434 

N.J. Super. 522, 526 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). 

"Generally, we afford substantial deference to a trial court's evidentiary 

rulings." State v. Sessoms, 413 N.J. Super. 338, 342 (App. Div. 2010) (citing 

State v. Covell, 157 N.J. 554, 564 (1999)). The trial court is "entitled to draw 

inferences from the evidence and make factual findings based on his 'feel of the 
18 A-4142-16T2

case,' and those findings [are] entitled to deference unless they [are] 'clearly 

mistaken' or 'so wide of the mark' that the interests of justice require[] appellate 

intervention." Elders, 192 N.J. at 245; see also State v. Locurto, 157 N.J. 463, 

471 (1999) (quoting Johnson, 42 N.J. at 161-62). We "may not substitute [our] 

own conclusions regarding the evidence, even in a 'close' case." State v. 

Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010) (quoting Locurto, 157 N.J. 

at 471). "'[A]bsent a showing of an abuse of discretion, i.e., [that] there has 

been a clear error of judgment,' an evidentiary ruling will stand." Sessoms, 413 

N.J. Super. at 342 (alterations in original) (quoting State v. Brown, 170 N.J. 138; 

147 (2001)). 

A.

Defendant claims there was insufficient reasonable suspicion of 

intoxication to justify his removal from the vehicle on the night of the stop. He 

contends the State failed to meet its burden because it relied on the hearsay 

testimony of Schwartz rather than Sysol, the officer who made the initial stop,

to establish reasonable suspicion.

The Fourth Amendment of the United States Constitution and the New 

Jersey Constitution guarantee the right of people to be secure against 

unreasonable searches and seizures, by requiring warrants issued upon probable 
19 A-4142-16T2

cause. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Warrantless searches "are 

presumptively unreasonable and invalid unless justified by a recognized 

exception to the warrant requirement." State v. Bolte, 115 N.J. 579, 585 (1989).

One such exception is an investigatory stop. See State v. Patino, 83 N.J. 

1, 7 (1980) ("The warrant requirement . . . may be dispensed . . . in only a few 

narrowly circumscribed exceptions. The prima facie invalidity of any 

warrantless search is overcome only if that search falls within one of the specific 

exceptions created by the United States Supreme Court."); see also Terry v. 

Ohio, 392 U.S. 1, 27 (1968); United States v. Hensley, 469 U.S. 221, 226 (1985) 

(finding that police officers may stop a motor vehicle and detain its occupants 

temporarily while they investigate a criminal offense). To subject a person to 

an investigatory stop and detention, however, the police must have reasonable, 

articulable suspicion of conduct that violates the law. State v. Bernokeits, 423 

N.J. Super. 365, 371-72 (App. Div. 2011).

A police officer may conduct an investigatory stop if, based on the totality 

of the circumstances, there is reasonable suspicion to believe an individual has 

just engaged in, or is about to engage in, criminal activity. State v. Maryland, 

167 N.J. 471, 487 (2001) (citing Terry, 392 U.S. at 21). Our Supreme Court has 

defined "reasonable suspicion" as "a particularized and objective basis for 
20 A-4142-16T2

suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J. 

346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). 

Under the totality of the circumstances analysis, weight is given to the officer's 

experience and knowledge, and the "rational inferences that could be drawn 

from the facts objectively and reasonably viewed in light of the officer's 

expertise." State v. Todd, 355 N.J. Super. 132, 137-38 (App. Div. 2002) 

(quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). In the context of a detention 

to perform a field sobriety test, "our courts have consistently . . . upheld such 

routine, standardized testing on the basis of a reasonable, articulable suspicion

of driver intoxication." Bernokeits, 423 N.J. Super. at 374 (citing State v. 

Adubato, 420 N.J. Super. 167, 181 (App. Div. 2011)).

Here, at the suppression motion hearing, Schwartz testified regarding the 

information he received from Sysol during the traffic stop, namely, defendant's 

erratic driving and conduct after the stop. However, Schwartz testified about

his own observations of defendant and justifications for the administration of 

the field sobriety test, including the chemical odor on defendant's breath, his 

slow and slurred speech, and his difficulty maintaining balance. 

The court provided a detailed explanation of the basis for reasonable 

suspicion by explaining the totality of the circumstances. It concluded
21 A-4142-16T2

the State established that . . . Sysol and . . . Schwartz 

did have an articulable reasonable suspicion that 

[d]efendant was driving while intoxicated in order to 

expand the scope of the initial traffic stop and detain 

[d]efendant for field sobriety testing. Specifically, first 

[d]efendant was stopped at 12:21 a.m. after making a 

left hand turn on red. His speech was slurred, his hand 

and head movements were slow, and his pupils were 

pinpoint. Even outside the vehicle, the [d]efendant 

moved slowly and had difficulty standing and walking 

without falling or swaying from side to side. In 

addition, the court notes that . . . Schwartz observed a 

strong "chemical" odor from the [d]efendant's breath 

and person. Given the totality of circumstances 

presented, the officer had a reasonable articulable 

suspicion that [d]efendant was driving while 

intoxicated and therefore, the [d]efendant's motion 

should be denied.

The court also explained why there was no hearsay issue:

Defendant's argument that the only information that . . .

Schwartz had was hearsay is inaccurate. As previously 

mentioned, it was . . . Schwartz who had detected the 

chemical odor coming from the [d]efendant's breath. 

This observation, coupled with what . . . Sysol . . . told 

him about the [d]efendant's slurred speech, slow 

movements, and inability to stand on his own gave . . .

Schwartz enough articulable reasonable suspicion to 

request the [d]efendant to do psychophysical testing.

Notwithstanding, on appeal defendant cites State v. Bacome, 440 N.J. 

Super. 228, 240 (App. Div. 2015) for the proposition that a "key fact" is not 

permitted to be adduced entirely from hearsay and asserts the court here relied 

on hearsay testimony and there was insufficient evidence to find a reasonable 
22 A-4142-16T2

articulable suspicion of defendant's intoxication to support his detention outside 

the vehicle. We disagree.

The issue in Bacome was whether police had a "heightened awareness of 

danger" during a motor vehicle stop that necessitated ordering a passenger out 

of a car for a seatbelt violation. 440 N.J. Super. at 237-38 (quoting State v. 

Smith, 134 N.J. 599, 618 (1994)). There, the State relied on the testimony of an 

officer that his partner observed the defendant moving forward and reaching 

under his seat during the stop. Id. at 232, 239. On appeal, we reversed the order 

denying the motion to suppress because the trial court made "no finding 

regarding whether there was 'some fact or facts in the totality of the 

circumstances that would create in a police officer a heightened awareness of 

danger that would warrant an objectively reasonable officer securing the scene 

in a more effective manner.'" Id. at 240 (quoting Smith, 134 N.J. at 618). We

noted the trial court failed to explain how the driver's movements suggested the 

passenger posed a danger. Id. at 241.

Our Supreme Court reversed, holding "the furtive movements inside the 

car were 'specific and articulable facts' that warranted heightened caution to 

order the passengers out of the vehicle." State v. Bacome, 228 N.J. 94, 108 

(2017). The Court cited the hearsay testimony of the officer, stating "[a] key 
23 A-4142-16T2

element in our analysis is [the officer]'s testimony that, after the detectives 

pulled the [vehicle] over, [his partner] observed [the] defendant reaching 

forward under his seat. We defer to the motion judge's finding that [the officer]'s 

testimony was credible." Id. at 107.

Likewise, here, the trial court acknowledged hearsay evidence is 

admissible during a suppression hearing, but also made specific findings about

Schwartz's testimony, which it found credible. Defendant does not dispute the 

credibility of Schwartz's testimony. The court found defendant's slow

movement, slurred speech, lack of coordination, and unusually constricted 

pupils provided the reasonable suspicion of intoxication and a basis to detain 

defendant outside the vehicle. These findings are supported by the substantial 

credible evidence in the record and we decline to disturb them.

B.

Defendant challenges the seizure of the vial from his vehicle under the 

plain view exception for a warrantless search. He argues Schwartz lacked

probable cause to seize the vial because "his expertise was limited with regard 

to PCP and other non-common drugs[,]" and he testified the vial resembled an 

eye dropper. Defendant argues, even if there was probable cause to associate 
24 A-4142-16T2

the contents of the vial with contraband, there was no exigency and Schwartz 

had sufficient time to obtain a search warrant. 

"'[P]lain view' provides grounds for seizure of an item when an officer's 

access to an object has some prior justification under the Fourth Amendment." 

Texas v. Brown, 460 U.S. 730, 738 (1983). "The seizure of property in plain 

view involves no invasion of privacy and is presumptively reasonable, assuming 

that there is probable cause to associate the property with criminal activity." 

Payton v. New York, 445 U.S. 573, 587 (1980). Our Supreme Court has stated: 

"We do not believe that a police officer lawfully in the viewing area must close 

his eyes to suspicious evidence in plain view." State v. Bruzzese, 94 N.J. 210, 

237 (1983). Therefore, for the plain view exception to apply:

First, the police officer must be lawfully in the viewing 

area.

Second, the officer has to discover the evidence 

"inadvertently," meaning that he did not know in 

advance where evidence was located nor intend 

beforehand to seize it.[2]

Third, it has to be "immediately apparent" to the police 

that the items in plain view were evidence of a crime, 

contraband, or otherwise subject to seizure.

 

2 Our Supreme Court has since excised the inadvertence requirement from the 

plain view doctrine. State v. Gonzales, 227 N.J. 77, 82 (2016). However, the 

reformulated doctrine is to be applied prospectively and is inapplicable to this 

case. Ibid.
25 A-4142-16T2

[Id. at 236 (citations omitted) (citing Coolidge v. New 

Hampshire, 403 U.S. 443, 465-68, 470 (1971)).]

The "immediately apparent" prong requires an officer have probable cause 

to associate the item with criminal activity or contraband. Id. at 237. "In 

determining whether the officer has probable cause to associate the item with 

criminal activity, the court looks to what the police officer reasonably knew at 

the time of the seizure." Ibid.

[P]robable cause is a flexible, common-sense standard. 

It merely requires that the facts available to the officer 

would "warrant a man of reasonable caution in the 

belief," Carroll v. United States, 267 U.S. 132, 162 

(1925), that certain items may be contraband or stolen 

property or useful as evidence of a crime; it does not 

demand any showing that such a belief be correct or 

more likely true than false. A "practical, nontechnical" 

probability that incriminating evidence is involved is 

all that is required. Brinegar v. United States, 338 U.S. 

160, 176 (1949).

[Brown, 460 U.S. at 742.]

Here, the trial court made the following findings regarding the plain view 

search:

The [o]fficer was outside of the vehicle when he viewed 

the contraband. There is no evidence to show that the 

officer did not come upon this evidence inadvertently. 

Finally, the [o]fficer stated on direct examination that 

although he was not sure of exactly the type of 

contraband, based on his knowledge he did believe it to 

be contraband. This information is enough to satisfy 
26 A-4142-16T2

the standard for the officer to seize the evidence under 

the plain view exception.

We agree. Schwartz reasonably believed the vial was contraband based 

on his experience as a DRE. His testimony was credible because it explained 

the common usage and physical manifestations of PCP. Additionally, he saw 

the vial after defendant exhibited signs of intoxication and failed field sobriety 

tests. 

We also reject defendant's contention Gonzales requires the plain view 

exception to be accompanied by justifiable exigency. In Gonzales the Court 

concluded, 

[p]lain view, in most instances, will not be the sole 

justification for a seizure of evidence because police 

must always have a lawful reason to be in the area 

where the evidence is found. Thus, when necessary, the 

police will also be required to comply with the warrant 

requirement or one of the well-delineated exceptions to 

that requirement.

[227 N.J. at 104 (emphasis added).]

 

Here, for reasons we have noted, Schwartz had a lawful reason to be 

standing beside defendant's vehicle. Moreover, the facts here demonstrate the 

discovery of the vial was incident to a valid stop, inadvertent, and not pretextual 

as found in Gonzales. Id. at 87.
27 A-4142-16T2

C.

Defendant argues the urine test was an unconstitutional search and 

seizure. Specifically, he argues the search incident to arrest and exigency 

exceptions to the warrant requirement are inapplicable when a urine sample is 

taken. 

As we noted, defendant was Mirandized on two separate occasions, once 

when he was arrested at the scene of the traffic stop, and again at the station

house. After defendant voluntarily signed a Miranda waiver, Schwartz 

requested a urine sample to complete the DRE procedure, to which defendant 

complied. Therefore, the search was constitutional and we decline to consider 

the balance of defendant's arguments regarding the urine sample.

III.

Finally, although neither party raised the issue, at oral argument the State 

agreed the sentence imposed for defendant's conviction for third-degree 

possession of PCP was illegal, in that it imposed a jail term of 180 days, but 

then suspended all but 30 days of the term. See State v. Scioscia, 200 N.J. Super. 

28, 32, n. 2 (App. Div. 1985); State v. Cullen, 351 N.J. Super. 505, 507-08 (App. 

Div. 2002). For these reasons, we reverse and remand the sentence for the PCP 

possession for re-sentencing. 
28 A-4142-16T2

Affirmed as to the conviction and reverse and remanded as to the sentence. 

We do not retain jurisdiction.