Suppression Document (L)

STATEMENT OF FACTS

On October 13, 2007 at approximately 1:35 a.m. Sgt. L.F. of the _______ Police Department was driving his patrol vehicle eastbound on ______ Ave. Defendant L.M. was a passenger in a car being proceeding south on _____ Street. The car had started to make a right turn onto __________ Ave., but changed its mind and continued on _______. It then turned right into ____Place. It then started to enter the driveway of the ______________, but, realizing its mistake, stopped, signaled a turn, and turned west on ______Place. Sgt. F. then pulled the vehicle over. He indicates that he saw a wooden box in the center console which he instructed the driver to hand to him. The driver complied and Sgt. F. opened it discovering marijuana. No where in his report does Sgt. F. indicate the driver violated any motor vehicle laws and in fact issued him no tickets. There was nothing about the driving of the automobile to indicate anything other then the driver was lost and was trying to figure out which way to go.

LEGAL ARGUMENT

1. POINT

THE POLICE OFFICER DID NOT HAVE A REASONABLE AND ARTICULABLE SUSPICION OF UNLAWFUL ACTIVITY TO JUSTIFY THE INITIAL STOP OF THE AUTOMOBILE

Ordinarily, the police may stop a motor vehicle, even briefly, only if they have a “reasonable suspicion” that the occupants are engaged in unlawful activity. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401 (1979); United States v. Brignoni-Ponce, 442 U.S. 873, 95 S.Ct. 2574 (1975); State v. Egan, 213 N.J. Super. 133, 135 (App. Div. 1986); State v. Barcia, 235 N.J. Super. 311 (App. Div. 1989).

Stopping an automobile on the road is a seizure within the meaning of the Fourth and Fourteenth Amendments requiring some level of individualized suspicion. Delaware v. Prouse, 440, U.S. 648, 653. The Court stated that “Except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicenced or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile is unreasonable under the Fourth Amendment.” Id. at 663.

The standard for an investigatory stop of an automobile requires a reasonable and justifiable suspicion of criminal activity using a Terry standard. In Terry v. Ohio, 392 U.S. (1968), the Supreme Court of the United States held that to justify an initial investigative stop, there must be unusual conduct which leads a police officer, based on his experience, to have a reasonable belief that criminal activity is afoot. Id. at 29. In Terry, the unusual conduct was two men pacing a particular block numerous times and repeatedly staring into the same store window. The officer noted that the men would confer after each had paced the block. This was found sufficient for the officers to conclude that the men were “casing a job”, preparing for a robbery. The Terry Court held that the police officers had justifiable and reasonable suspicion that a crime was about to occur, and therefore their brief stop on the street in order to inquire about the defendant’s behavior was permissible.

Under Terry, the police must be able to articulate particular facts to support their suspicions that criminal activity is imminent. A stop will not be upheld where it is based solely on arbitrary police practices or mere hunches. Landstrom v. Texas, 443 U.S. 47 (1979). In Landstrom, the officer stated that he stopped the defendant because the defendant looked suspicious and that he had never seen that individual in the area before. As a result of the officer’s failure to articulate any factors which would justify a reasonable suspicion that the defendant was about to engage in criminal conduct, the Court held the officer stop violative of the Fourth Amendment. The Court stated “when such a stop is not based upon objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. Landstrom at 52.

In the case at bar there was absolutely no evidence of any criminal conduct which would justify the motor vehicle stop. The officer’s only justification would be if the officer personally observed a motor vehicle infraction. See State v. Moss 277 N.J. Super 545 (App. Div. 1994) where police officer validly stopped the defendant for failing to signal a left hand turn. In this case the defendant committed no motor vehicle violation and in fact the officer did not write any motor vehicle summons for his conduct.

The State is unable to point out a single infraction of the Motor Vehicle Code that would give Sgt. F. the right to pull over the defendant. The officer’s motivations or his good faith or lack thereof is immaterial. New Jersey does not recognize a good faith exception to the Warrant Requirement. State v. Novembrino, 105 N.J. 95 (1987). The test is an objective one: Did the defendant commit a violation of the Motor Vehicle Code so the officer could stop him? The answer here is NO. The defendant committed no motor vehicle violation and the officer had no cause to stop the vehicle. Therefor, all fruits of that stop must be suppressed.

2. POINT

NO EXCEPTION TO THE WARRANT REQUIREMENT EXISTED THAT WOULD GIVE THE POLICE OFFICER THE RIGHT TO SEARCH THE PASSENGER COMPARTMENT OF THE CAR, TO SEIZE A WOODEN BOX IN THE CENTER CONSOLE OR TO SEARCH THE INSIDE OF THE BOX ITSELF BY OPENING IT.

The State cannot justify this this search by claiming it was anything other than what it was. The Officer observed a wooden box in the center console. instructed the driver to hand it over, and opened it. Once again the Officer’s good faith is not the issue. The question is whether this arises to probable cause wherein a reasonable person properly trained would have a reasonable and articulable that there were drugs in the car that would justify a search. It clearly does not.

Sgt. F. made plain view observations of a wooden box. He did not smell marijuana and he had absolutely no reason to investigate the box further by requiring that it be handed over and opening it. He had no probable cause to open it up and search it. As the Court said in State v. Chapman, 332 N.J. Super. 452, 463 (App. Div. 2000),

Under ordinary circumstances, when the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by the police for additional questioning.

Mr. Landstrom did not commit any motor vehicle offense, did not have any items in plain view that a reasonable person would conclude were narcotics or narcotics paraphernalia and the Police Officer had no reason search the vehicle or open the box.

CONCLUSION

For the foregoing reasons Defendant requests that the Court conclude that the evidence in this case was illegally seized and should be suppressed.

Respectfully submitted,

RANDOLPH H. WOLF

Attorney for Defendant

By: ______________________________

Randolph H. Wolf

Dated: