Motion To Suppress Involving a Search of Defendant’s Person Resulting in the Recovery of Heroin Folds
Appellate Docket No.: A-0583-19
Decided October 11, 2022
Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey affirmed two motions to suppress involving a search of defendant’s person resulting in the recovery of heroin folds.
In State v. Taylor, On June 7, 2018, around 1:15 in the morning, Linden Police Department Officers Robert Smith and David Aracque were patrolling on a local roadway when they noticed a silver car swerving from one side of the road to the other. Because they were concerned the driver was impaired, the officers stopped the car. The stop occurred within 500 feet of a public park.
There were two individuals in the car. Defendant sat in the driver’s seat and co-defendant, Jennifer Serio, sat in the front passenger seat. After stopping the car, Smith approached defendant and Aracque approached Serio. Officer Smith smelled no alcohol and saw no indicia of defendant being drunk. Nonetheless, Smith asked defendant to exit the car so Aracque, who was better trained in driving-under-the-influence matters, could observe defendant.
When defendant got out of the car, Smith noticed what appeared to be a fold of heroin on the driver’s side floorboard. Smith brought defendant to where Aracque was standing. He then returned to the driver’s side of the car and saw the fold again.
The officers found no drugs on defendant. However, during a search of the car, the officers found 149 folds of heroin and approximately $2,000 in cash.
On October 23, 2018, a Union County grand jury indicted defendant and Serio on the following counts: (1) third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); (2) third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(b)(3); (3) second-degree possession of a controlled dangerous substance with intent to distribute on or within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a); (4) fourth-degree obstruction against defendant only, N.J.S.A. 2C:29-1(a); and (5) fourth-degree tampering against Serio only, N.J.S.A. 2C:28-6(1).
While out on pretrial release, defendant was arrested on drug charges. Around 4:30 in the afternoon, Linden Police Department Detectives Michael Olbrys and Jason Mohr were conducting surveillance in an area known for drug transactions when they saw a silver car. The car was occupied by two men – defendant, who sat in the driver’s seat, and Rajohn Posey, who sat in the front passenger seat. When the car stopped, Posey got out and started talking to a group of people on the sidewalk. A female got into the car, sat in the front passenger seat, and handed cash to defendant. The officers, using binoculars, saw defendant give the woman a small item in return for the cash.
The detectives followed and stopped the car a few minutes later. While speaking with defendant, Mohr saw two pink capsules on the driver’s side door handle. Mohr asked defendant to get out of the car and then searched him. During the search, the officer found seven folds of suspected heroin in defendant’s pants pocket. The officers then searched the car and discovered $506, suspected heroin folds stamped with “Rihanna” and “444,” a clear bag containing a rocklike substance, and a digital scale.
A Union County grand jury indicted defendant and Posey on three counts: (1) third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); (2) third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and (3) third-degree possession of a controlled dangerous substance with intent to distribute on or within 1,000 feet of school property, N.J.S.A. 2C:35-7(a).
Defendant moved to suppress the evidence seized by both searches. The Court denied both, finding reasonable suspicion to stop defendant’s vehicle in the first interaction and probable cause after defendant was asked to step out of the vehicle once the officers spotted the heroin in plain view. The second search was also upheld, finding officers had probable cause once they observed defendant perform a hand to hand transaction with an individual previously known for drug use.
Defendant appealed, and the Appellate Division affirmed the denials of the motions to suppress, finding reasonable suspicion for the traffic stop and officers having the right to ask defendant to exit the vehicle without anything more. Once out, probable cause existed once officers spotted the heroin. Again, for the second search, the Appellate Division agreed officers had probable cause where: 1) the officer conducting surveillance “was an experienced narcotics officer;” 2) he had previously made arrests in a neighborhood known for drug trafficking; and 3) “[u]sing binoculars, [the officer] observed three men move away from the group to the back of a vacant lot, and he saw defendant and his companion give money to a third person in exchange for small unknown objects”.
This case is important to understand there are three types of interactions with law enforcement, each involving different constitutional implications depending on the event’s impact on an individual’s freedom to leave the scene. First, a “field inquiry is essentially a voluntary encounter between the police and a member of the public in which the police ask questions and do not compel an individual to answer.” State v. Rosario, 229 N.J. 263, 271 (2017). The individual is free to leave, therefore field inquiries do not require a well-grounded suspicion of criminal activity before commencement. Id. at 271-72; see also Elders, 192 N.J. at 246. Second, an investigatory stop or detention, sometimes referred to as a Terry stop, involves a temporary seizure that restricts a person’s movement. A Terry stop implicates a constitutional requirement that there be “‘specific and articulable facts which, taken together with rational inferences from those facts,’ give rise to a reasonable suspicion of criminal activity.” Elders, 192 N.J. at 247 (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)); see also Rosario, 229 N.J. at 272. Third, an arrest requires “probable cause and generally [are] supported by an arrest warrant or by demonstration of grounds that would have justified one.” Rosario, 229 N.J. at 272. Here, probable cause was found with the odor of marijuana (something that is no longer allowed since its legalization) but the search had to be reasonable in scope. Because the search was not complete in the area that officers could see and smell marijuana, they could not extend the search to the trunk.
If you have been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.
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