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Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Thursday, May 14, 2015

The Police cannot pull over a car without probable cause

The Police cannot pull over a car without probable cause
The Fourth Amendment to the United States Constitution provides:
     The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

         The New Jersey Constitution (1947, Article 1, Paragraph 7) prohibits any unreasonable searches and seizures and guarantees to the people the same rights as the Federal Constitution. 
         When evidence is seized or even a car is stopped without a warrant or violation, the burden of proof is upon the state to prove that there was no Fourth Amendment violation.  State  v. Brown, 132 N.J. Super. (App. Div. 1975).  The state must prove that there was no Fourth Amendment violation by a preponderance of the evidence.  State v. Whittington, 142 N.J. Super. 45 (App. Div. 1976).  Such searches are presumptively invalid and the State carries the burden of proof of legality. State v Valencia 93 NJ 126, 133 (1983), State v. Brown, supra.; State v. Welsh, 84 N.J.  348, (1980).  In the absence of a valid exception to the requirement for a search warrant, a search conducted without a warrant is per se unreasonable. Schnekloth v. Bustamonte, 412 U.S. 218,219, 93 S. Ct. 2041, 36 L. Ed 2d  854, 858 (1973)
         Enforcement of the federally created rights has been effected by rendering the fruits of unconstitutional searches inadmissible in associated criminal court proceedings,  Weeks v United States 232 US 383, 34 S. Ct. 341, 58 L. Ed 652 (1914). These restrictions are applicable to the states,  Mapp v Ohio, 367 US 643, 81 S. Ct. 1684, 6 L. Ed 2d 1081 (1961).
         State judges, no less than federal judges, have the high responsibility for protecting constitutional rights. While they are disturbed to allow defendants to go unprosecuted, their oath of office requires them to continue the guarantees afforded by the Constitution.  As explained in Weeks, supra,:
         The efforts of the courts and their officials to bring the guilty to          
punishment, praiseworthy as they are, are not to be aided by the                    
sacrifice of those great principles established by years of endeavor                
and suffering which have resulted in their embodiment in the                           
fundamental law of the land.  Weeks v United States 232 US 383,393,            
34 S. Ct. 341, 58 L. Ed 652 (1914).
         Independently of federally mandated rights, each state has the power to impose higher standards on searches and seizures under dictate law than is required by the federal constitution, PruneYard Shopping Center v Robins 447 US 74, 81 (1980);  State v Johnson 68 NJ 349, 353 (1975). In fact, New Jersey has chosen to afford to the accused in the search and seizure area greater rights than those deemed mandated by the United States Constitution.  State v Alston, 88 NJ 21 (1981); State v Novembrino 220 NJ Super. 229, 240-243 (App. Div. 1985), aff'd 105 NJ 95 (1987).
         Courts are to afford liberal, not grudging enforcement of the Fourth Amendment. We do not have one law of search and seizure for narcotics and gambling cases and another for breaking and entering and theft. The meanness of the offender or the gravity of his crime does not decrease, but rather accentuates the duty of the courts to uphold and dispassionately apply the settled judicial criteria for lawful searches under the Amendment. For it is the hard case which sometimes proves the Achilles' heal of constitutional rights, even as it tends to make bad law in other areas. State v Naturile 83 NJ Super. 563, 579 (App. Div. 1964).

         The United States Supreme Court has declared that random stops for license and registration checks violate the Fourth Amendment prohibition against unreasonable searches.  Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 674 (1979); State  v.  Patino, 83 N.J.  1 (1980).  There was no indication that motor vehicle laws were violated or that any other laws were violated.  Therefore, the police officers violated the constitutional rights of defendant by ordering him to exit the vehicle so the  police on the scene could conduct warrantless searches.
            State v. Patino, 163 N.J. Super. 116, 125 (App. Div. 1970) aff'd 83 N.J. 1 (1980) prohibited a stop where the court found "in sum, the search was purely investigatory and the seizure a product of luck and hunch, a combination of insufficient constitutional ingredients."
         Automobiles are areas of privacy protected by the Fourth Amendment of the United States Constitution.  State v. Patino, supra.; State v. Williams, 163 N.J. Super. 352, 356 (App. Div. 1979).  New Jersey Courts have held that Article 1, Paragraph 7 of the New Jersey Constitution affords greater protection than the Fourth Amendment.  State v. Davis, 104 N.J. 490 (1986), State v. Kirk, 202 N.J. Super. 28, 35 (App. Div. 1985).  The burden is on the State to prove an exception to the warrant requirement showing the need for the search.  State v. Welsh, 84 N.J. at 852.  Understandable, professional curiosity is not sufficient justification for an intrusion on a constitutionally protected automobile.  State v. Patino, supra.  In the case at bar, the search of the vehicle and seizure of evidence were unconstitutional.  Therefore, the evidence obtained in that seizure must be suppressed.         
Cases Prohibit Searches Without A Warrant
       Community care-taking does not permit a search of a car State v Costa; 327 NJ Super 22 (App. Div. 1999)  
         Although a police officer might have the authority to stop a driver and a passenger alighting from an automobile on a private parking lot to inquire as to why the driver and his passenger had been sitting in the parked vehicle, the officer's subsequent investigation elevated the encounter to a detention, which was unsupported by an articulable suspicion, thus rendering the driver's consent to search void.  We reject the State's contention that the officer's stop of both men was in conformity with its community care-taking function.

Request for Credentials is a Stop. State v. Egan 325 NJ Super. 402 (Law Div. 1999).  
       Unsupported by probable cause or reasonable suspicion, a police officer's request of credentials from the driver of a parked vehicle constituted a "stop"; was more than minimally necessary to dispel the officer's naked suspicion; and not justifiable as a "field inquiry."  The fruits of the stop are, therefore, suppressed.

MV Stop Not Permitted on Community Caretaking. State v. Cryan 320 NJ Super. 325 (App. Div. 1999). 
         A motor vehicle stop may not be based on community caretaking grounds where the officer stopped the defendant because, at 4 a.m., the defendant did not proceed for five seconds after a traffic light turned green.
         Legally parked car no grounds for search. State in the Interest of A.P.   315 NJ  Super. 166 (Law Div. 1998). 

         Here, where the juvenile was a passenger in a legally parked car and the officer who approached him to make a community - care-taking inquiry, as opposed to a lawful stop based on a traffic violation, had no prior knowledge of the juvenile, and there was no criminal activity in the area and no signs of alcohol or a controlled dangerous substance, the juvenile's furtive movements in avoiding eye contact with the officer did not provide a basis for an objective reasonable and articulable suspicion, and the evidence seized (a lighter and a "pipe-like smoking device") must be suppressed; the issue of whether or not the juvenile's statement to the officer that he did not lean forward and down as the officer approached was a lie which would justify a suspicion that he might be armed, is subject to ambiguity and interpretation. 

Police cannot Search for Driver Identification in Minor Motor Vehicle Stop. State v. Lark 163 NJ 294 (2000).
       Under the federal and state constitutions, following a motor vehicle stop for a minor traffic violation, a police officer may not enter the vehicle to search for proof of the driver's identity even though the driver has failed to produce his driver's license and may have lied about his identity.  The officers lacked probable cause to believe a crime had been committed.  The dictum in State v. Boykins, 50 N.J. 73 (1967), does not authorize the search. 

Search not permitted for speeding ticket. Knowles v. Iowa  525 U.S. 113, 119 S. Ct. 484, 142 L.Ed.2d 492, 67 U.S.L.W. 4027 (1998).  (Unanimous U.S. Supreme Court decision - Justice Rehnquist).

         Since searches incident to traffic citations are not required either to protect an officer's safety or to discover and preserve evidence, there is no justification for an exception to the Fourth Amendment's warrant requirement.  Suppression granted.