Pubdate: Tue, 31 Jul 2007
Source: Asbury Park Press (NJ)
Copyright: 2007 Asbury Park Press
Contact:  http://www.app.com/
Details: http://www.mapinc.org/media/26
Author: The Associated Press

COPS NEED MORE THAN A 'HUNCH' TO SEARCH LAWFULLY STOPPED CAR

Outlook For 2004 Case Dim

NEWARK -- Police must have a reasonable suspicion of criminal 
wrongdoing before asking for permission to search a disabled car, the 
state Supreme Court ruled Monday.

The 6-1 ruling by New Jersey's highest court extends protections 
against a warrantless search of a vehicle and its occupants in cases 
where the vehicle wasn't stopped by police.

The decision means that marijuana and cocaine found by a state 
trooper under the hood of a car in 2004 cannot be used as evidence 
against its occupants, who were charged with drug trafficking.

The case now returns to a trial judge, who had reached the same 
conclusions as the Supreme Court. An appellate panel of judges 
determined the evidence should be allowed.

The Supreme Court decision broadens a 2002 ruling in which it found 
an officer cannot seek consent to search a lawfully stopped vehicle 
unless the officer has "a reasonable and articulable suspicion" that 
criminal activity is involved.

The majority found that there was credible evidence to support a 
finding by the trial judge that no such suspicion existed.

"The driver of a disabled car facing police officers whose offer of 
assistance quickly turns into a "fishing expedition' based on a 
"hunch' that criminal activity is afoot is subject to no less 
compulsion to accede to a consent search than the driver subject to a 
typical motor-vehicle stop," Justice Barry T. Albin wrote for the majority.

The lone dissenter was Justice Robert A. Rivera-Soto, who objected to 
the decision based on how much weight he thought should be given to 
the trial judge's decision.

No decision has yet been made on whether to drop the drug-trafficking 
charges, but the outlook for continuing the case is dim, said 
Assistant Middlesex County Prosecutor Marcia L. Silva.

"Without the drugs that were seized from the vehicle, any other 
statements or facts that arose from that are clearly suppressed," 
Silva said. "It doesn't really leave me much with the case."

Silva said the ruling was disappointing, asserting, "It inhibits the 
police even further."

The decision was welcomed by the state Public Defender's Office, 
which handled the appeal for the six people charged in the case.

"I think people should be glad that if they are (broken down), the 
police will try to help them, not sit around and try to figure out if 
they are drug dealers," Assistant Public Defender Mark H. Friedman said.

The case began about 2:50 a.m. Sept. 17, 2004, when troopers came 
upon a Lincoln Town Car and Honda Accord on the shoulder of the New 
Jersey Turnpike in Edison. The Lincoln's gasoline tank had come loose.

The cars carried six people who were returning to North Carolina from 
New York City. Two men were working on the tank, two people were 
sitting on a guardrail, and two were sleeping in the Honda. State 
Police Sgt. Ronald Klem and Trooper Sean O'Connor said several of the 
people appeared nervous. Klem wondered if drugs were hidden beneath the car.

After individuals gave different reasons why they had been in New 
York, and because none of the six owned the cars, the troopers got 
consent to search from one person. After he balked at signing the 
form, O'Connor said they would wait until a drug-sniffing dog 
arrived. A half-hour later, the person signed the form.

O'Connor found over a pound of cocaine and less than two ounces of 
marijuana in the Lincoln's engine compartment. The trooper also found 
$8,000 in cash on one person, and $3,000 on another.

State Superior Court Judge Frederick P. DeVesa determined that the 
drugs and money stemmed from an unconstitutional search and could not 
be admitted as evidence. The search stemmed from "nothing more than a hunch."
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