Appellate Docket No.: A-240-20
Decided April 14, 2022
Submitted by New Jersey New Jersey Criminal Lawyer, Jeffrey Hark
In a recent unpublished decision, the Appellate Division of New Jersey affirmed a motor vehicle search and seizure of significant amounts of marijuana after defendant initiated his turn signal during a lane change rather than waiting 100 feet then changing lanes.
In Barazanji, on August 29, 2018, Officer Joshua Williams was on patrol in Parsippany. Williams had been in the HTPD Patrol Division for one and one-half years at this point. Williams was stopped at an emergency turnaround and waiting to head southbound on Route 287 to return to his jurisdiction. While stopped, Williams observed a white Volkswagen sedan that crested a hill and immediately changed lanes, presumably because the driver saw the police car. Officer Williams pulled onto Route 287 southbound and began following the Volkswagen.
Williams observed the Volkswagen activate its turn signal and change lanes “[a]lmost immediately.” Williams testified that based on his training and experience, a proper lane change consists of a driver activating their turn signal for approximately one hundred feet prior to turning or changing lanes. Williams was shown his dash camera footage and later clarified that defendant waited “one to two seconds” in the center lane before his tires touched the dotted line. After Williams witnessed the Volkswagen quickly change lanes, he activated his emergency lights and conducted a motor vehicle stop. He then advised dispatch of the stop and walked to the passenger side of the vehicle.
As Williams approached the car he saw “a big cloud of cigarette smoke . . . come out of the passenger side window” and the “passenger blew smoke right into [his] face.” The officer also noticed the car had an “overwhelming odor of deodorizer” and the cigarette co-defendant was smoking “was freshly lit.”
Williams noticed that defendant’s “hands were shaking” when he handed Williams his license, he would not “make eye contact,” and was visibly nervous. At this point, Williams asked defendant to step out of the vehicle and called Sergeant Vitanza for backup.
Vitanza testified that he worked as a police officer for thirty-four years. When Vitanza arrived, Williams asked him to call for a K-9 unit because he “believed that there was criminal activity afoot.” Williams indicated that defendant’s “behavior, his nervousness, the confliction of his timeframes coming from his grandmother’s house and the overwhelming odor of deodorizer and the cigarette smoke that was freshly lit” led him to be suspicious.
Vitanza noticed “powder on the seat” as Vargas exited the car. After both occupants had exited the vehicle, Vitanza used his flashlight and observed “greenish flakes” on the floor by the front passenger seat and door and a white powdery substance on the front passenger floor. He also observed a package of “cheap cigars which are commonly used to roll marijuana blunt cigarettes, between the front passenger seat and front passenger door.” He noted that these cigars are usually hollowed out and refilled with marijuana.
Based on video footage, at 1:26 a.m. Vitanza told Williams that he observed flakes in the car. Despite K-9 Spike’s interest in the vehicle, the dog’s handler stated he “did not alert.” At that point, Vitanza decided “based on the probable cause that developed with the flakes and the powder” to direct Williams to search the vehicle. Williams found “small brownish-green vegetation” on the front passenger floor. Also on video, Williams states, “they have . . . white powder all over” and “[a]s soon as [he] opened the door [he] smelled the weed.” “Due to the strong odor being near the rear seat without any findings of marijuana, a search of the trunk was conducted.” The search yielded approximately ten pounds of marijuana, seventy-five THC cartridges, and paraphernalia. Specifically, “[t]wo pounds were found wrapped in a gray sheet, two pounds w[ere] found within a Wal-Mart shopping bag, and six pounds w[ere] found within a black duffel bag.”
Defendant was charged and eventually indicted with fourth-degree possession of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-10(a)(3) (count one); and second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(b).
Defendant made a motion to suppress the evidence, arguing officers lacked reasonable suspicion to conduct a motor vehicle stop and lacked probable cause to search the vehicle. The Court denied the motion, finding that defendant failed to use his turn signal for at least 100 feet prior to changing lanes. Officers were proper in conducting a motor vehicle stop at this time. Officers also had probable cause to search the vehicle based on defendant’s demeanor, the deodorizer, and the flakes seen in plain view on the floor. The motion was denied, defendant appealed, and the Appellate Division affirmed on the same grounds.
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, there was a search incident to arrest, an exception to the warrant requirement.
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