State v. Zamor
New Jersey Appellate Division Monmouth County Decided March 18, 2019
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
So there’s several aspect of this cage which are really important to understand. Initially he must be noted that the police effectuated the motor vehicle stop based on a mobile data computer available to every local and state police cruiser in the state. These are license plate readers that are placed on the roof and trunk a police cruisers which automatically provide the police officer computer in the passenger compartment with identities and drivers license status. This court reiterated the long-standing principle that people do not have any right to privacy to their drivers license information and related tag registration information depicted on the drivers light. Then, now that the officer is legally allowed to pull the vehicle over and address the driver, there in a little dish and that the vehicle to smell any illegal substance; which includes marijuana here. In addition to the information the police also learned that this driver had several outstanding warrants.
The balance of the fax get a little hazy here because the officer that walked up to the vehicle did not smell marijuana, a subsequent off as it did not smell marijuana, however when a third officer walked up to the vehicle to close a sunroof, that officer allegedly smelled marijuana. As a result they brought the driver back to the car and asked for consent to search which she did not give. They then border police dog to smell the vehicle and he/EG dog made a positive hits for drugs. Subsequently a search warrant with the pain and additional drugs were found as well as a gun.
The Appellate Division was admitted it was constrained in overturning the trial judges decision because the bitch that lives again Deb friend is given to the trial judge so long as there is a rational basis and connection between the back and the applicable law. If there is no error of wall and the judges findings of fact are tied to the testimony then the appellate division is not able to overturn the trial judge fairly because it believe it would come to a different conclusion. The Appellate Division did find that the judges findings of fact work hi to the testimony and the reasonable inference could be made from the officers testimony that they smell of marijuana it did exist as a result the search of the drugs was found to be awful and as a result the evidence obtained, the guns and drugs were not suppressed.
As marijuana soon becomes legal in New Jersey the question of probable cause I’m probably smell will become a leading issue for Police in the coming months. If marijuana is legal for police will not be able to use the smell as a probable cause basis to search a vehicle. This will undoubtably create additional and new bases for the police to come up with to determine that there was “ongoing illegal activity “observed in Plainview or either waffle basis for them to believe that there is probable cause of criminal activity. However, it is not in dispute that the number of motor vehicle stops and searches based on marijuana will surely decrease. It is my opinion that the number of DWIs will dramatically increase and the police will be using that basis as the means to come up to a vehicle charge drivers with motor vehicle violation, and then search the car is incident to arrest as an a minute straight of search to find are there illegal substances.
The facts are as follows
The facts surrounding defendant’s arrest as developed at the suppression hearing are summarized as follows. On March 10, 2014, East Brunswick Police Officer Joseph Bauer observed a vehicle on Route 18 being operated “at a high rate of speed.” Bauer noted the vehicle’s license plate number and ran it through his mobile data terminal (MDT). Information obtained from the MDT indicated that the vehicle was registered to defendant and that his license had been suspended. The MDT also provided Bauer with a photograph of defendant.
Using the information from the MDT, Bauer drove alongside defendant’s car and verified that defendant was driving the vehicle. Bauer initiated a motor vehicle stop and after pulling him over without incident, defendant provided Bauer with his driving credentials, which the officer used to verify that defendant’s license had been suspended.
When Bauer confronted defendant about the suspension, defendant stated that he thought he had addressed the problem. The suspension occurred when defendant failed to appear in municipal court and, as he later learned, his license suspension was a mistake. Defendant stated that he later appeared, paid a fine, and believed that had resolved the issue. Additional information supplied to Bauer by dispatch
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revealed that there were three open arrest warrants for defendant based upon his failure to appear in multiple municipal courts for various traffic tickets.
Bauer had defendant park his vehicle in a gas station’s lot, advised him he was not allowed to drive, and asked defendant to have someone retrieve his vehicle. Bauer also told defendant that he was placing him under arrest because of the open warrants, removed defendant from his vehicle for a pat down, and waited for backup to arrive to transport defendant to headquarters.
Defendant called his wife to advise her of the situation and asked her to come to retrieve his car. When defendant told the officer that his wife would be there shortly, Bauer said they could not wait for her and directed him to tell his wife to meet them at the police station where she could obtain the keys to defendant’s car. Defendant complied and asked Bauer to close the sunroof in his vehicle.
Another police officer, Mark Morris, arrived at the scene and at defendant’s request, entered defendant’s vehicle to remove a woman’s purse from the backseat of the car. The officer retrieved the purse, secured defendant in the backseat of his police vehicle, and left to transport him to police headquarters.
After Morris and defendant left the scene, Bauer, for the first time, went into defendant’s car to close the sunroof. At that point, he smelled marijuana and saw
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dryer sheets and a package of cigar wrappers. He then communicated with Morris and asked that he bring defendant back to the scene.
Upon defendant’s return, Bauer advised him about smelling marijuana in his car. Defendant denied smoking marijuana and said he only smoked cigarettes, which he had been doing at the time of the stop. Bauer asked for defendant’s consent to search the vehicle, but defendant refused. The officer told defendant that because he refused to give consent, he would be calling for a canine search of the vehicle, and again asked for consent, which defendant again refused. Bauer called for the canine officer to meet him at the scene.
An officer and his dog arrived within twenty minutes, and the dog indicated the presence of CDS outside both sides of defendant’s car. Bauer again asked for consent to search and defendant again refused. Bauer had the car impounded and obtained telephonically a search warrant. The ensuing search disclosed forty-two Ziploc bags of cocaine, burnt marijuana “roaches,” cigars, approximately $1,491 in cash, rolling papers, and fifty bags of heroin.
Legal Issues:
In addition, as to his entry into defendant’s vehicle, Bauer confirmed that he did not record that event as he turned off the MVR when defendant was initially transported from the scene and did not turn it on again until defendant was brought back. Bauer also confirmed that none of the suspected marijuana recovered from the car was sent for analysis to the lab
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and he never charged defendant with any marijuana related offenses. When Morris testified, he did not indicate that he smelled marijuana when he went into defendant’s car to retrieve the purse.
During defense counsel’s cross-examination of Bauer, the State objected to Bauer being questioned about his use of the MDT to screen other drivers during the day prior to stopping defendant. The motion judge sustained the objection because there had been no showing that Bauer’s use of the MDT to obtain information about defendant was based on anything other than his observation of defendant’s vehicle travelling at a high rate of speed.
Defendant’s wife testified and explained that before being stopped by Bauer, defendant had driven his family to his in-laws’ home. She also testified that she had been inside defendant’s vehicle just prior to the motor vehicle stop and that there was no marijuana in the car and she did not detect any odor of marijuana while in the vehicle. Defendant testified and denied that he was speeding, which he could not have done because of the volume of traffic, described his interaction with Bauer, and stated that he was smoking cigarettes, which was the only type of items in the ashtray, before he was stopped by Bauer.
At the conclusion of the hearing, the motion judge denied defendant’s application, placing his reasons on the record in a comprehensive oral decision. At
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the outset, the judge addressed defendant’s contention that his stop was the result of impermissible racial profiling. The judge observed that there was no evidence of profiling in the form of records of police MDT checks in the area for any given time period, which defendant could have subpoenaed if he wanted to pursue that claim. He also found there was no evidence that the claim that defendant was speeding was a “pretext” as the officer was fully capable of determining whether a vehicle was speeding without using radar at any point, even before the MVR was activated. The judge then found that Bauer properly relied on defendant’s license plate number to conduct the MDT check and correctly used that information to stop defendant’s motor vehicle after receiving information that his license was suspended and that it was defendant who was driving the vehicle.
The motion judge also found that the MVR depicted the conversation between Bauer and defendant about the sunroof. He found that after defendant was removed by Morris, Bauer entered defendant’s vehicle for that purpose. At that point, he first detected the odor of marijuana, which led to defendant’s return to the scene and the eventual exterior search of the vehicle by the canine squad, and then the interior search pursuant to the warrant. The judge made note of the fact that at no time before going to close the sunroof did Bauer go inside the car to conduct any type of search.
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The motion judge then addressed the legal issue presented, which he defined as whether Bauer’s stop of defendant’s vehicle using his license plate and the information he received from the MDT violated defendant’s Fourth Amendment rights. Citing to State v. Myrick, 282 N.J. Super. 285, 289 (Law Div. 1995), the judge observed that even a random check of a license plate using an MDT is not an impermissible invasion of an individual’s privacy because “there’s no expectation of privacy in your license plate.” Moreover, the judge found that Bauer’s stop of defendant only occurred after the MDT check, which “created an articulable suspicion that defendant was violating a motor vehicle law, in this case driving while suspended.”
The judge next addressed whether “Bauer had legal justification to order defendant to exit the vehicle,” and, citing to Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), State v. Smith, 134 N.J. 599, 609 (1994), and State v. Legette, 247 N.J. Super. 278, 279-80 (Law Div. 1994), he concluded that in order to protect the officer’s safety, removing defendant from the car was proper. He also concluded that in light of defendant’s driving while suspended and the outstanding warrants for his arrest, Bauer was not only justified, but obligated to arrest defendant at the scene.
The judge also made specific credibility findings about Bauer, and found he was credible. He cited to State v. Judge, 275 N.J. Super. 194 (App. Div. 1994), and
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concluded that once Bauer smelled marijuana in the car, he acted properly by having defendant return to the scene and asking for his consent to search the vehicle, and after not receiving it, having the canine squad search the outside of the car. Once there was a positive indication, Bauer correctly sought and obtained a search warrant. The judge concluded “that everything . . . was entirely proper” and denied the motion.
Defendant filed a motion for reconsideration, which the judge denied. In a written decision that accompanied his order, the judge rejected defendant’s contention that reconsideration was warranted because Bauer’s testimony did not make sense as there was a delay between the time Bauer allegedly detected marijuana in the car and had Morris bring defendant back. He also rejected defendant’s argument that the judge erred by sustaining the State’s objection to defense counsel “asking any questions aimed at assessing whether the police off[ic]er’s use of the MDT was indeed random or based upon impermissible motives.” The motion judge reiterated his finding that Bauer was a credible witness and that even if there was a “time lapse,” it was not a basis to reconsider that finding. As to his sustaining the State’s objection to questions about Bauer’s earlier use of the MDT, the judge found unpersuasive defendant’s supporting contention that because Bauer did not issue defendant a speeding ticket and the MVR did not demonstrate
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defendant was speeding, the prohibited inquiry into Bauer’s motivation for using the MDT was warranted. The judge found that the two contentions could not support reconsideration as they could have been addressed at the hearing and, in any event, “[h]ad the objection been overruled, there is not a significant showing that this would have greatly affected the outcome of the suppression hearing.” Finally, the judge found defendant’s contention that he was entitled to a rehearing to address and correct his failure to come forward with a “subpoenaed . . . sampling of MDT records” and to give him an opportunity to raise the issue of Bauer’s earlier use of the MDT, was “not consistent with the grounds stated in R[ule] 4:49-2 in which to grant a motion for reconsideration because such additional information could have been provided in the prior hearing.”