State v. Kerns

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES J. KERNS, a/k/a JAMES J. KERNS II, JAMES J. KERNS III,JAMES J. KERNS 3RD, JAMES JOHNLITY KERNS, and MILLS, Defendant-Appellant.

DOCKET NO. A-4731-17T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued December 9, 2019

December 30, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Messano, Ostrer and Susswein (Judge Ostrer concurring).

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment Nos. 17-01-0050 and 17-01-0051.

Emma R. Moore, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Emma R. Moore, of counsel and on the briefs).

Adam D. Klein, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Adam D. Klein, of counsel and on the brief).

PER CURIAM

In this consolidated appeal, James J. Kerns contends the trial court should have granted his motions to suppress drugs that police seized from his person on two separate occasions. After evidentiary hearings, the court denied the motions, and Kerns pleaded guilty to two counts of third-degree possession of a controlled dangerous substance (CDS), one count from each incident. The court imposed concurrent terms of forty-two months.

In the first incident, Kerns was a passenger in a car that police stopped for motor vehicle violations. Kerns contends police unlawfully asked him to identify himself. Kerns provided false names to police, who arrested him for hindering. Incident to his arrest, police seized heroin from his person.¹ Kerns contends the police's unlawful inquiry tainted the seizure that followed. He argues:

BECAUSE MR. KERNS WAS MERELY A PASSENGER IN A CAR STOPPED FOR A TRAFFIC VIOLATION, TROOPER MURRAY DID NOT HAVE AUTHORITY TO ASK FOR HIS IDENTIFICATION.

BECAUSE THIS CREDENTIALS CHECK VIOLATED ARTICLE 1 PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION, THE EVIDENCE SUBSEQUENTLY SEIZED MUST BE SUPPRESSED.

After Kerns's release on bail, a cooperating witness engaged in two controlled buys from him. Then, tipped off that Kerns was about to travel to Newark to buy drugs, police surveilled Kerns make the round-trip from Phillipsburg. On his return, police arrested Kerns and, incident to the arrest, seized more heroin and MDMA (which is short for methylenedioxymethamphetamine, and popularly known as "Ecstasy").² Kerns contends those drugs should have been suppressed because the controlled buys did not create probable cause for the arrest; and even if they did initially, the probable cause had become stale. He argues:

BECAUSE THE STATE DID NOT ESTABLISH THAT THE OFFICERS HAD PROBABLE CAUSE TO ARREST MR. KERNS ON SEPTEMBER 22, 2016, THE EVIDENCE OBTAINED IN THE

SEARCH INCIDENT TO THAT ARREST MUST BE SUPPRESSED.

A. The Police's Limited Knowledge of the Controlled Buys.

B. The Gap Between the Controlled Buys and Eventual Arrest.

Having reviewed Kerns's arguments in light of the record and applicable principles of law, we reverse the first order and affirm the second. Only the motion regarding the first indictment merits extended discussion.

I.

A.

We defer to the trial court's limited factual findings regarding the first incident, because they were supported by substantial credible evidence in the record — the testimony of New Jersey State Trooper Robert Murray, the sole witness at the suppression hearing, and a motor vehicle recording of the traffic stop. See State v. Elders, 192 N.J. 224, 243-44 (2007) (describing standard of review of suppression orders). However, relying on the undisputed video record, we are constrained to make additional findings regarding facts that the trial court did not address. Cf. State v. S.S., 229 N.J. 360, 380 (2017) (stating appellate court may not substitute its findings for those the trial court made based on video recording).

The trial court found that Trooper Murray and his partner, Trooper J. Almeida, observed a vehicle with Pennsylvania tags cross the free bridge into Phillipsburg shortly after midnight. One headlight was out, and the car was going 25 mph in a 15-mph zone. During the traffic stop, a trooper asked Kerns, the front seat passenger, for his identification. The court found: "When asked for his identification, defendant stated that he did not have his driver's license on his person and proceeded to provide Trooper Murray with several false names and a false DOB." The troopers checked those names in the computer system and "[n]o results were produced." Trooper Murray then ordered Kerns to exit the vehicle and arrested him for hindering an investigation, N.J.S.A. 2C:29-3(b). An initial search of his person uncovered nothing. The trooper transported Kerns to the State Police station. When he removed Kerns from his police vehicle, Kerns held in his hands seventy-eight wax folds of suspected heroin.

The court held, as a matter of law, that Kerns was free not to answer the trooper's question. In the court's view, Kerns himself prompted further questioning and his ultimate arrest by providing false names. Citing State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div. 2002), the court evidently concluded that the troopers' encounter with Kerns was a field inquiry; consequently, the police did not need reasonable grounds or suspicion, andKerns was free not to answer. Id. at 388-89. On appeal, the State takes that same position, as its first line of defense of the court's order.

We owe no deference to the trial court's legal conclusion, State v. Watts, 223 N.J. 503, 516 (2015), which mischaracterized the trooper's encounter with Kerns. In Sirianni, a police officer approached a person in a parked car and asked for identification. The person was not detained; he was free not to answer; and the police inquiry did not convert what was a field inquiry into a detention. Sirianni, 347 N.J. Super. at 391. By contrast, Kerns and the driver were already seized, because "[m]otor vehicle stops are seizures for Fourth Amendment purposes," State v. Atwood, 232 N.J. 433, 444 (2018), and during a traffic stop, "the passenger, like the driver" is seized, State v. Sloane, 193 N.J. 423, 426 (2008). Kerns was not free to leave. As the Court observed in State v. Rosario, 229 N.J. 263, 273 (2017), "[i]t defies typical human experience to believe that one who is ordered to produce identification [when the officer has boxed in a person's vehicle] would feel free to leave."

The video makes clear that Kerns was commanded to produce identification documents and, because he was unable to do that, to state his name and date of birth. When an officer asks a person "if he ha[s] 'any identification on [him],'" the United States Supreme Court understood that "as a request toproduce a driver's license or some other form of written identification." Hiibel v. Sixth Judicial Dist. Ct. of Nevada, Humboldt Cty., 542 U.S. 177, 181 (2004) (second alteration in original). Although the trial court found that police "asked" Kerns for identification, Kerns was not free to refuse, just as he was not free to leave. That Kerns was seized is one reason we conclude, as a legal matter, that an objectively reasonable person under the circumstances would not feel free to refuse. See State v. Gibson, 218 N.J. 277, 291-92 (2014) (stating that a field inquiry involves questioning that is not "harassing, overbearing, or accusatory in nature," and the person is free to refuse and terminate the encounter, but an investigative stop is one where a reasonable person would not feel free to leave). But, the trooper left nothing to doubt. The video recorded Trooper Murray ask Kerns if he had identification. Kerns answered inaudibly, Trooper Murray asked for clarification, and then commanded, "Give the trooper [referring to Trooper Almeida] your name."³

The video recording reflects that in the beginning of the stop, Trooper Murray informed the driver that he was pulled over because his headlight wasnot functioning, and he went 25 mph in a 15-mph zone. The trooper asked the driver for his license and registration. He produced the first, but could not locate the second. Trooper Murray assured the driver that he could confirm the driver's ownership by running the plates; and cordially stated that the driver would likely locate the registration after the police left.⁴

While Trooper Murray engaged with the driver, Trooper Almeida continued to question Kerns to ascertain his identity. Both troopers returned to the patrol car to look up the name Kerns gave, and finding nothing, Trooper Murray walked back to Kerns to ask for clarification. The trooper returned to the patrol car a second time, and again could find no match. The troopers walked back to Kerns, who clarified the spelling of his name, and Trooper Murray asked why Kerns had not done so earlier. The troopers returned to the patrol car a third time. By that point, nearly fifteen minutes had elapsed since the stop began. The first video ends with both troopers in their vehicle.⁵ By that point,no one wrote out traffic summonses for the driver. Trooper Murray testified that after a fourth encounter with Kerns regarding his identity, he arrested Kerns for hindering.

B.

The question is: were police entitled to require Kerns to identify himself during the traffic stop for minor vehicle violations, and then continue to detain him and the driver — after the police were done investigating the motor vehicle violations that precipitated the stop — while they tried to confirm that Kerns was who he said he was. To answer that question, we must review fundamental principles governing the permissible scope of traffic stops.

"'[T]he ultimate touchstone of the Fourth Amendment is reasonableness.'" State v. Terry, 232...