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On May 8, 2019, the New Jersey Supreme Court decided the case of State v. Dwight M. Nelson (8-60-17) and held that a police officer's traffic stop was prolonged but nonetheless justified because the police officer had “reasonable and articulable suspicion necessary to prolong the stop… .” A state police detective had received a tip that a vehicle, then traveling on the New Jersey Turnpike, was transporting a large quantity of marijuana. Sometime after the tip was received, the vehicle was stopped for violation of several traffic laws. When the detective approached the driver's window, he detected a strong smell of an air freshener and, based on his experience, concluded that air fresheners can be used to mask the odor of drugs.

The officer noticed that the driver was sweating and appeared quite nervous. After he offered conflicting stories of where he was bound, the officer noticed two large bundles in the car. Questioning the defendant, the latter admitted that he had previously been arrested for possession of marijuana. In the belief that the car did contain narcotics, the detective asked for permission to search the vehicle, but that was denied. Accordingly, the officer called for a canine unit and some 30-plus minutes later, the unit arrived. The canine reacted positively for the presence of narcotics, and the defendant was then arrested.

In a motion to suppress, the defendant urged that the motor vehicle stop and search which followed violated the Fourth Amendment. The judge determined that there was one issue, to wit, whether the extension of the traffic stop to allow for the dog-sniff of the vehicle was constitutional. The lower court recognized that the traffic stop extended over a considerable period of time but found that the detective had had reasonable and articulable suspicion to conduct the search. The defendant pled guilty to possessing over 25 pounds of marijuana and was sentenced to a term of six years imprisonment together with mandatory fines and penalties. On appeal he argued that the wait for the canine unit unreasonably prolonged his detention. The Appellate Division rejected the argument and, on the basis of the Supreme Court's prior ruling in State v. Dunbar, 229 N.J. 521 (2017), held that the circumstances justified the delay occasioned by the call for the canine unit and that the canine search had not unreasonably prolonged the motor vehicle enforcement stop. The evidence therefore was not suppressed.

The Supreme Court granted certification and granted amicus curiae status to the ACLU. They presented arguments essentially the same as the defendant, to wit, that the canine sniff was impermissible because it unreasonably extended the length of the motor vehicle stop. The state countered by contending that the police had reasonable and articulable suspicion to extend the stop. Writing for the unanimous court, Justice Fernandez-Vina wrote that, as previously held in Dunbar, a canine sniff may not prolong a traffic stop beyond the time that is necessary to complete the stop's mission unless the officer possesses reasonable and articulable suspicion to do so.

In Nelson, the court concluded that the initial stop was lawful and based upon observations of motor vehicle violations and that, albeit the canine unit's arrival prolonged the traffic stop, the other circumstances (the odor of air freshener, the nervousness of the driver and the presence of boxes in the car) constituted independent and reasonable suspicion that the driver possessed drugs. Justice Fernandez-Vina concluded that, based upon the tip received by the State Police detective, reported as coming from a federal ATF officer, and the overwhelming odor of air freshener, in conjunction with other observations that the officer made at the scene, there was reasonable suspicion that it was necessary to prolong the stop to await the arrival of the canine unit. We note that neither the defendant nor the ACLU as amicus challenged the legality of the actual stop or argued that it was pretextual. Perhaps because the motor vehicle violations were apparently beyond question. Nonetheless, we would have liked to have seen the court address those issues.

As stated by the United States Supreme Court on more than one occasion, the whole picture must be viewed, and the individual facts in a case such as this cannot be considered in isolation. We agree with the court's conclusions.