SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2334-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARL L. BARLEY, a/k/a

EARLY BARLEY and EARL

T. BARLEY,

Defendant-Appellant.

____________________________

Submitted March 24, 2021 – Decided April 19, 2021

Before Judges Fuentes and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment Number 19-06-

1414.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Laura A. Lasota, Assistant Deputy Public 

Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Lauren Bonfiglio, Deputy Attorney 

General, of counsel and 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NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Defendant Earl L. Barley appeals from a December 13, 2019 judgment of 

conviction after trial for second-degree unlawful possession of a handgun and 

certain persons not to possess weapons. We affirm for the reasons that follow.

I.

The following facts are derived from the record. On May 28, 2018, 

Officer John Borelli of the Franklin Township Police Department observed a 

black, four-door Nissan sedan operated by defendant with a tinted windshield 

and front side windows in violation of N.J.S.A. 39:3-75 and tinted-out rear tag 

cover, in violation of N.J.S.A. 39:3-33, crossing the intersection near Lincoln 

Avenue. Officer Borelli drove his marked police car to the front of a Dollar 

General store situated in close proximity to Lincoln Avenue and continued to 

observe defendant.

When defendant saw Officer Borelli's car, he lowered the front tinted 

windows and quickly pulled into the Dollar General parking lot. After parking 

his vehicle, defendant "ran" into the store and returned to his car shortly 

thereafter without any shopping bags. Defendant again lowered the front tinted 

windows and drove off. At 5:25 p.m., Officer Borelli followed the Nissan and 
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initiated a motor vehicle stop based on motor vehicle equipment violations, 

which was captured on a dash camera.

After approaching the Nissan on the passenger side and identifying 

himself, Officer Borelli advised defendant, the registered owner, he was stopped 

for equipment violations and requested his credentials. Defendant stated, "why 

the f--- are you pulling me over?" He began to sweat after Officer Borelli asked 

if there was anything illegal in the car. After that, defendant started to breathe 

heavily and displayed other signs of anxiety in the face of cool weather.

Upon receiving defendant's documents, Borelli ran his credentials, 

checked for outstanding warrants, and performed a search of defendant's 

criminal history in light of his suspicious behavior. The criminal history search 

revealed defendant had a history of narcotics distribution offenses. Officer 

Borelli requested consent to search defendant's vehicle, which he declined. 

Defendant called 9-1-1 to request a supervisor come to the scene. At 

approximately 5:40 p.m., Officer Borelli requested K-9 assistance and twelve 

minutes later, Sergeant Adam Shaw of the Vineland Police Department arrived 

with Pikke, his K-9 partner.

When the K-9 arrived at the scene, the officers escorted defendant to the 

rear of one of the patrol cars so Pikke could conduct an exterior scent sniff of 
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the Nissan. Pikke alerted to the presence of narcotics in the car, leading to a 

search of the vehicle. The search yielded a loaded .380 semi-automatic handgun 

in the glove box, a blue sock next to the handgun containing ammunition and 

one hollow-point bullet, two cell phones, and approximately 55.23 grams, the 

equivalent of two-and-one-half ounces of marijuana, in a vacuum-sealed bag in 

the trunk.

Defendant was placed under arrest, and a search of his person incident to 

arrest uncovered approximately 300 empty Ziploc "dime bags" 1in his jacket 

pocket. On June 25, 2019, an Atlantic County grand jury returned Superseding 

Indictment Number 19-06-1414, charging defendant with second-degree 

unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b)(1) (count 

one); second-degree possession of a firearm while committing a controlled 

dangerous substance (CDS) offense, contrary to N.J.S.A. 2C:39-4.1(a) (count 

two); third-degree possession of CDS, marijuana, with intent to distribute, 

contrary to N.J.S.A. 2C:35-5(a)(1) (count three); fourth-degree possession of 

drug paraphernalia, Ziploc bags, with intent to distribute, contrary to N.J.S.A. 

1

 Detective Jason Salter was qualified at trial as an expert in the field of 

narcotics and narcotics distribution. He defined "dime bags" as "little [Z]iploc[] 

bags that are commonly used for distributing drugs" which are "sold for 

approximately [ten dollars]" and typically contain "around a gram."
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2C:36-3 (count four); fourth-degree possession of a hollow-point bullet, 

contrary to N.J.S.A. 2C:39-3(f) (count five); and second-degree certain persons 

not to have weapons, contrary to N.J.S.A. 2C:39-7(b) (count six).2

Prior to trial, defendant filed a motion to suppress the seized items based 

on the charges in the original indictment. Defendant also moved to dismiss the 

indictment. Officer Borelli was the only witness who testified at the March 27, 

2019 suppression hearing. The trial court reserved decision on the motion to 

suppress and issued a comprehensive written decision on April 2, 2019, denying 

the motion.

In its decision, the trial court found the K-9 sniff did not violate 

defendant's Fourth Amendment rights and did not prolong the stop. The court 

determined "[t]he twenty-seven-minute-period" between the time Officer 

Borelli obtained defendant's record from dispatch and the arrival of the K-9 

2

 The original indictment, number 18-08-1255, was filed on August 7, 2018, 

and charged defendant with fourth-degree possession of CDS paraphernalia with 

intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) (count one); fourthdegree possession of CDS paraphernalia with intent to distribute, contrary to 

N.J.S.A. 2C:36-3 (count two); second-degree unlawful possession of a weapon, 

contrary to N.J.S.A. 2C:39-5(b)(1) (count three); second-degree possession of a 

weapon while in the course of committing a CDS offense, contrary to N.J.S.A. 

2C:39-4.1(a) (count four); fourth-degree possession of a hollow point bullet, 

contrary to N.J.S.A. 2C:39-3(f) (count five); and second-degree certain persons 

not to possess a weapon, contrary to N.J.S.A. 2C:39-7(b)(3) (count six). 
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officer "was a reasonable delay under the circumstances." Noting that Officer 

Borelli had an independent, reasonable, and articulable suspicion necessary to 

justify any alleged delay, the court stated:

Officer Borelli took a reasonable approach, in 

stopping the defendant and asking for his credentials. 

The defendant immediately reacted with hostility by 

asking "why the f[---] are you pulling me over" after the 

officer had already advised the defendant that he was 

being stopped due to his tinted window and obstructed 

license plate. 

There is nothing to suggest that the officer was 

confrontational or aggressive toward the defendant to 

warrant the defendant calling [9-1-1]. Thus, the [9-1-

1] call is suspicious and adds to the officer[']s 

reasonable articulable suspicions that criminality is 

accruing . . . .

The defendant was not simply nervous as argued 

by the defense. He was argumentative as soon as he 

was stopped, [and] he became increasingly agitated as 

evidenced by his [9-1-1] call. Officer Borelli observed 

the defendant make a quick turn into the parking lot, 

roll down his front driver and passenger windows, run 

quickly into a store, only to re[turn] without a purchase. 

From his experience as a patrol officer, having stopped 

over 100 vehicles, he reasonably believed that the 

defendant was attempting to evade the traffic stop. The 

officer then properly checked the defendant's 

credentials through dispatch and learned that the 

defendant had prior convictions, including CDS related 

convictions. The officer returned to the defendant's car 

and the defendant continued to act excited, perspiring 

and breathing heavily. These behaviors coupled with 

the defendant's other actions, including calling [9-1-1] 
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and initially attempting to evade, and learning of his 

several convictions for distribution of narcotics, 

increased Officer Borelli's suspicion. The [c]ourt finds 

based upon the totality of the circumstances that Officer 

Borelli had reasonable and articulable suspicion to 

request the K-9 officer.

A memorializing order was entered.

After several counts were withdrawn and dismissed, the jury found 

defendant guilty on count one, second-degree possession of a weapon. In a 

bifurcated trial, the same jury found defendant guilty on count six, seconddegree certain persons not to have weapons. The trial court sentenced defendant 

to a seven-year term of imprisonment with a three-and-one-half-year period of 

parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c), and a concurrent 

ten-year term of imprisonment with a five-year period of parole ineligibility for 

the certain persons offense. The State's motion to sentence defendant to a 

persistent offender extended term was denied.

Against this record, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTION TO SUPPRESS 

EVIDENCE SEIZED DURING A WARRANTLESS 

SEARCH OF HIS CAR BECAUSE THE [K-9] SNIFF 

UNLAWFULLY PROLONGED THE MOTOR 

VEHICLE STOP BEYOND THE TIME REQUIRED 

TO COMPLETE THE STOP'S MISSION AND THE 
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SEARCH WAS NOT JUSTIFIED PURSUANT TO 

THE AUTOMOBILE EXCEPTION.

A. The [K-9] Sniff Unlawfully Prolonged 

The Time Needed To Complete The Main 

Purpose Of The Stop Without The 

Requisite Reasonable Suspicion 

Independent From The Stop Itself.

B. The Automobile Exception To The 

Warrant Requirement Did Not Justify The 

Search Of Defendant's Car.

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY 

EXCESSIVE AND MUST BE REDUCED.

Having carefully reviewed the record, we affirm primarily for the reasons 

expressed in the thorough opinion of the trial court. We add the following 

remarks.

II.

When reviewing a trial court's ruling on a motion to suppress evidence, 

we "must uphold the factual findings underlying the trial court's decision so long 

as the findings are supported by sufficient credible evidence in the record." State 

v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). Even if we 

may have reached a different conclusion, we give deference to the factual 

findings of the trial judge who was "substantially influenced by his opportunity 
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to hear and see the witnesses and to have the 'feel' of the case." Id. at 244; see 

also State v. Gonzales, 227 N.J. 77, 101 (2016) (applying the same review 

standard). However, we review the trial court's conclusions of law de novo. 

Elders, 192 N.J. at 252-53.

Appellate courts reviewing a trial court's ruling on a motion to suppress 

must evaluate whether the trial court's determination is "so clearly mistaken 'that 

the interests of justice demand intervention and correction.'" State v. Lamb, 218 

N.J. 300, 313 (2014) (quoting Elders, 192 N.J. at 244). A trial court's factual 

determinations are entitled to deference because "those findings 'are 

substantially influenced by [an] opportunity to see and hear witnesses and to 

have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. 

Gamble, 218 N.J. 412, 424 (2014) (quoting State v. Johnson, 42 N.J. 146, 161

(1964)).

It is well established that to comply with the federal and New Jersey 

Constitutions, law enforcement officials generally must obtain a warrant before 

conducting a search of the person or private property of an individual, unless a 

recognized exception to the warrant requirement applies. State v. Witt, 223 N.J. 

409, 422 (2015). One of those recognized exceptions is the so-called 
10 A-2334-19

"automobile exception." Ibid. (citing Pennsylvania v. Labron, 518 U.S. 938, 

940 (1996)).

The search in this case, which occurred in 2018, is governed by our

Supreme Court's seminal 2015 opinion in Witt. As interpreted in Witt, the 

automobile exception allows a police officer to "conduct a warrantless search of 

a motor vehicle if it is 'readily mobile' and the officer has 'probable cause' to 

believe that the vehicle contains contraband or evidence of an offense." Ibid.

(quoting Labron, 518 U.S. at 940). These principles in Witt revised prior New 

Jersey case law construing the automobile exception more restrictively, based 

upon assessment of exigent circumstances. See State v. Peña-Flores, 198 N.J. 6 

(2009), overruled by Witt, 223 N.J. 409 (reinstating and prospectively applying 

the automobile search standard from State v. Alston, 88 N.J. 211 (1981)).

Here, defendant argues the trial court erred in denying his motion to 

suppress for two reasons: (1) the K-9 sniff unlawfully prolonged the motor 

vehicle stop without the necessary reasonable suspicion to do so; and (2) the 

automobile exception to the warrant requirement would not have applied if the 

alleged improper K-9 search had not taken place. We reject defendant's 

arguments.
11 A-2334-19

"Both the United States and New Jersey Constitutions protect individuals 

from unreasonable searches and seizures." State v. Mann, 203 N.J. 328, 337 

(2010); U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. These protections extend 

to the seizure of an individual that results when law enforcement officers initiate 

a traffic stop. Delaware v. Pruse, 440 U.S. 648, 653 (1979). Generally, a 

warrantless search and seizure is per se illegal "unless it falls within one of a 

very few specific and well-delineated exceptions." State v. Demeter, 124 N.J. 

374, 379-80 (1991). The State has the burden of showing, by a preponderance 

of the evidence, that a warrantless search meets one of these exceptions. Alston, 

88 N.J. at 230.

Because "[a] lawful roadside stop by a police officer constitutes a seizure 

under both the Federal and New Jersey Constitutions," State v. Dunbar, 229 N.J. 

521, 532 (2017), "[t]he State must show the stop was 'based on specific and 

articulable facts, which taken together with rational inferences from those facts, 

give rise to a reasonable suspicion of criminal activity.'" State v. Alessi, 240 

N.J. 501, 518 (2020) (quoting Mann, 203 N.J. at 338). Reasonable suspicion is 

a "lower standard" than probable cause, State v. Stovall, 170 N.J. 346, 356 

(2002), and requires a reviewing court utilize an objective test to "assess whether 

'the facts available to the officer at the moment of the seizure or the search 
12 A-2334-19

warrant a [person] of reasonable caution in the belief that the action taken was 

appropriate.'" Mann, 203 N.J. at 338 (quoting State v. Pineiro, 181 N.J. 13, 20 

(2004)). A court evaluating the constitutionality of a traffic stop must evaluate 

the totality of the circumstances to determine whether the requisite reasonable 

suspicion existed. Alessi, 240 N.J. at 518.

Police officers are permitted to make "ordinary inquiries incident to [the 

traffic] stop," Dunbar, 229 N.J. at 533 (alteration in original) (quoting Rodriguez 

v. United States, 575 U.S. 348, 355 (2015)), and may "inquire 'into matters 

unrelated to the justification for the traffic stop.'" Ibid. (quoting Arizona v. 

Johnson, 555 U.S. 323, 333 (2009)). If, in the course of these inquiries, "the 

circumstances 'give rise to suspicions unrelated to the traffic offense, an officer 

may broaden [the] inquiry and satisfy those suspicions.'" State v. Nelson, 237 

N.J. 540, 552-53 (2019) (alteration in original) (quoting State v. Dickey, 152 

N.J. 468, 479-80 (1998)).

An officer's ability to make such inquiries does, however, have a limit 

because a "detention must be reasonable both at its inception and throughout its 

entire execution." State v. Coles, 218 N.J. 322, 344 (2014). For example, if an 

officer executing an otherwise lawful traffic stop "prolongs the stop, absent the 

reasonable suspicion ordinarily demanded to justify detaining an individual" by 
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pursuing incidental inquiries, then the traffic stop becomes unlawful. Dunbar, 

229 N.J. at 536. Moreover, "[a] seizure that is justified solely by the interest in 

issuing a warning ticket to the driver can become unlawful if it is prolonged 

beyond the time reasonably required to complete that mission." Id. at 534 

(quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)).

K-9 sniffs frequently implicate this inquiry. While "an officer does not 

need reasonable suspicion independent from the justification for a traffic stop in 

order to conduct a [K-9] sniff," our Supreme Court has held that "an officer may 

not conduct a [K-9] sniff in a manner that prolongs a traffic stop beyond the time 

required to complete the sniff's mission, unless he possesses reasonable and 

articulable suspicion to do so." Id. at 540. The question is not when the sniff 

occurred relative to the issuance of the ticket, but rather, whether the sniff added 

time to the traffic stop. Id. at 536.

Defendant concedes that Officer Borelli had an articulable, reasonable 

suspicion to stop him; namely, for the tinted windshield and front side windows 

and the tinted-out rear tag cover. Rather, defendant argues the actions 

undertaken by Officer Borelli, including checking defendant's criminal history 

and requesting a K-9 sniff, unlawfully prolonged the stop longer than necessary 

to issue the two motor vehicle violations summonses.
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Here, the trial court had to make two inquiries: "whether the wait for the 

[K-9] unit's arrival prolonged [defendant's] traffic stop, and if so, whether the 

delay was justified by independent reasonable and articulable suspicion" that 

defendant was engaging in criminal activity. Nelson, 237 N.J. at 553-54. The 

trial court found the K-9 sniff did not prolong the stop because "[t]he twentyseven minute period" between the time Officer Borelli obtained defendant's 

record from dispatch and the arrival of the K-9 officer "was a reasonable delay 

under the circumstances." The trial court's findings in this regard were not an

abuse of discretion and comported with our Court's holding in Dunbar.

III.

Defendant argues that the sentence imposed was manifestly excessive. 

"Appellate courts review sentencing determinations in accordance with a 

deferential standard," and "must not substitute [their] judgment for that of the 

sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). We must affirm a 

sentence, absent the following exceptions:

(1) the sentencing guidelines were violated; (2) the 

aggravating and mitigating factors found by the 

sentencing court were not based upon competent and 

credible evidence in the record/ or (3) "the application 

of the guidelines to the fact of [the] case makes the 

sentence clearly unreasonable so as to shock the 

judicial conscience."
15 A-2334-19

[Ibid. (alteration in original) (quoting State v. Roth, 95 

N.J. 334, 364-65 (1984)).]

A sentencing court should review a range of information "to assess the 

defendant's history and characteristics, and to understand the nature and 

circumstances of his or her crime." Id. at 72. "In fixing a sentence within the 

statutory range, a judge must determine whether specific aggravating or 

mitigating factors are grounded in credible evidence in the record and then 

weigh those factors." State v. Case, 220 N.J. 49, 54 (2014). The trial court must 

also explain how it conducted the weighing process. Id. at 65; see also R. 3:21-

4(g) (stating the trial court must "state reasons for imposing such a sentence 

including . . . the factual basis supporting a finding of particular aggravating or 

mitigating factors affecting the sentence"). Such a statement of reasons 

demonstrates "that all arguments have been evaluated fairly." State v. Bieniek, 

200 N.J. 601, 609 (2010).

Additionally, a court imposing sentences for multiple offenses must bear 

in mind that "though a defendant's conduct may have constituted multiple 

offenses, the sentencing phase concerns the disposition of a single, not a 

multiple, human being." State v. Yarbough, 100 N.J. 627, 646 (1985) (citation 

omitted). Therefore, when crafting a sentence, the sentencing court should make 
16 A-2334-19

"an overall evaluation of the punishment for the several offenses involved." 

Ibid. (citing State v. Rodriguez, 97 N.J. 263, 274 (1984)).

To do so, a court examines criteria such as whether: (1) "the crimes and 

their objectives were predominantly independent of each other;" (2) "whether 

the crimes were committed at different times or separate places, rather than 

being committed so closely in time and place as to indicate a single period of 

aberrant behavior;" (3) "any of the crimes involved multiple victims;" and (4) 

"the convictions for which the sentences are to be imposed are numerous." Id.

at 644. Because a trial court's imposition of a consecutive or concurrent 

sentence is discretionary, an appellate court reviews such a decision for abuse 

of discretion. State v. Spivey, 179 N.J. 229, 245 (2009).

Here, the sentencing court made specific findings with respect to the 

aggravating factors set forth in N.J.S.A. 2C:44-1(a):

As to aggravating factor three, the risk that the 

[d]efendant will commit another offense, the 

[d]efendant has nine prior convictions. The [d]efendant 

has been already offered probation, county jail, state 

prison, parole. He has not been deterred. Given the 

[d]efendant's prior record and his continued 

lawlessness there is no question that given the 

opportunity he will reoffend. Only a lengthy prison 

sentence will interrupt his criminality. The [c]ourt 

gives this factor substantial weight.
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As to aggravating factor six, the extent of the 

[d]efendant's prior criminal record and the seriousness 

of the offenses of which he has been convicted, the 

[d]efendant has an extensive criminal record. He has 

previously been convicted of a second-degree unlawful 

possession of a weapon yet he continues to disregard 

the laws even after being penalized for the same 

criminal offense. His crimes are serious and he 

continues to exhibit antisocial behavior even with prior 

sanctions. The [c]ourt gives this factor substantial 

weight.

As to aggravat[ing] factor nine, there is a strong 

need to deter this defendant especially and others 

generally from violating the law. The [d]efendant 

needs to be deterred and his prior sanctions, again, of 

county jail, state prison, parole and even treatment has 

not deterred the [d]efendant from continuing with his 

lawlessness. The [c]ourt gives this factor substantial 

weight.

Moreover, in rejecting defendant's argument that mitigating factors one 

and two, N.J.S.A. 2C:44-1(b)(1) and N.J.S.A. 2C:44-1(b)(2) applied, the 

sentencing court emphasized:

As to mitigating factor one, the [d]efendant's 

conduct neither caused nor threatened serious harm, the 

[c]ourt again does not give this any weight. The 

[d]efendant was in possession of a handgun which 

clearly threatens serious harm.

Mitigating factor two, the [c]ourt does not 

consider this factor. Clearly, the [d]efendant's 

possession of a gun shows that he contemplated 

conduct that would cause or threaten serious harm.
18 A-2334-19

Following our review, we reject defendant's sentencing challenge. As 

noted, the mitigating factors were properly rejected by the trial court and the 

length of the sentence fell within the permissible range. Finally, the sentence 

does not shock our judicial conscience. For all of these reasons, we find 

defendant's sentence was not manifestly excessive.

Any remaining arguments not addressed lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.