Judge Sabatino concluded in relevant part: The Court is cognizant that it can be impractical or hazardous for an officer to determine whether a driver clearly does not resemble the photo or description of the vehicle owner. The stop may occur at night in a poorly lit area, or the age, gender, height, or weight of the driver may not be readily ascertainable. These are all practical impediments affecting the totality of circumstances, and the reasonableness of an officer’s continued inference that the stopped motorist is indeed the vehicle owner. But there will be other situations in which the mismatch is patently and immediately obvious. In such instances of obvious mismatch, the constitutional grounds to continue the stop evaporate. Lastly, the Court encourages law enforcement officials to make reasonable efforts to attempt visual verification that the driver is the owner if — and only if — it is feasible and safe to do so. As a matter of federal and state constitutional law, the Court does not mandate visual confirmation.
In the circumstances presented here, Officer Kless had a sufficient reasonable and articulable suspicion to stop the car. However, when Kless walked up to the car’s passenger side and saw the two occupants from a close distance, it was apparent that Williams was not the car’s registered owner. And Kless’s subsequent uncertain perception of marijuana odor failed to rise to the level of reasonable and articulable suspicion of criminality to have authorized the continued detention. The facts here are simply too weak to support a plain-smell justification to prolong this mistaken stop and proceed with a search of the car once it was apparent that the owner was not the driver. Although the drug-sniffing dog arrived with another officer only a few minutes later and the search was performed quickly, defendants should have been already permitted to leave at that point. Immediately upon observing the occupants of the vehicle, Kless should have done no more than explain the vehicle had been inadvertently stopped and told defendants they were free to leave. Because the police lacked a reasonable and articulable suspicion to prolong the stop, the fruits of the ensuing car search were therefore unconstitutionally obtained and must be suppressed. And because the judgments of conviction for gun possession were based on evidence of a seized weapon that should have been excluded at trial, the Court vacates defendants’ convictions of those charges and remands for further proceedings.
The Court discerns no plain error stemming from the use of the model jury charge on gun possession in this case. The Court refers this subject to the Model Criminal Jury Charges Committee as specified in the Court’s opinion.
As to the video footage in which Williams questioned the police’s right to conduct a canine sniff and search of the car without the owner’s permission, the video should have been played without the audio. However, the erroneous admission of that evidence was harmless in light of the proofs as a whole and the context of the trial. It is unclear that a jury would necessarily regard Williams in a negative light for voicing the property interests of the absent car owner.
The only charge against the defendant that remained was a fourth-degree resisting arrest by flight. On remand, that charge will almost certainly be disposed of with a “time-served” sentence or dismissed outright.
