MORE 5 YEAR PRISON SENTENCES TOSSED BECAUSE COPS FAILED TO FOLLOW THE LAW

The men and women in law enforcement typically do get things right in balancing upholding the law and Constitutional rights all at the same time.

For the times that they do not get things right, we have the judicial system to fix things.

Quite uncommon for one single day, on Thursday, both the New Jersey Supreme Court and Appellate Division released decisions which affirmed our civil rights in warrantless searches.

The Supreme Court case dealt with a State Trooper who smelled marijuana in the passenger compartment of the car. After his initial search of the passenger compartment of the car yielded no results, he proceeded - with no warrant - to search the engine compartment and trunk, where he ultimately found weapons.

The Court tossed out the lower court's conviction, holding that expanding the search to the engine compartment and trunk went "beyond the scope of the automobile exception." As a result, the court ruled in favor of the defendant that the seized evidence should be suppressed.

On January 17, 2016, after receiving a “be on the lookout” (BOLO) email based on a tip from a confidential informant (CI) that Cornelius Cohen
would be traveling to the Carolinas to pick up firearms and bring them back to New Jersey to sell, State Trooper Charles Travis noticed one of the cars described in the BOLO email traveling northbound on the New Jersey Turnpike. Trooper Travis pulled the vehicle over for traffic violations.

When Trooper Travis approached the vehicle, he noticed multiple air fresheners hanging from the rearview mirror. Travis testified that he smelled “a strong odor of raw marijuana” in the vehicle during the stop and observed “greenish-brown vegetation” on the driver’s beard and shirt, which the trooper identified as “shake,” or “the tail-end of marijuana.”

Trooper Travis began a search of the vehicle. He first searched the passenger compartment, where he recovered from the glove compartment a 9mm spent shell casing. The search of the passenger compartment did not reveal any marijuana.

Trooper Travis did not apply for a search warrant based on the information supplied by the CI, but instead proceeded to the front of the vehicle where he opened the vehicle’s hood and searched the engine compartment. There he found a rifle and a revolver. Trooper Travis then moved his search to the trunk, where he found a duffle bag containing hollow point bullets. No marijuana was recovered from the car or its occupants.

Cohen filed a Motion to suppress the items seized during the warrantless search, arguing that the search of the hood and trunk did not qualify under the automobile exception to the warrant requirement.

In New Jersey, police may conduct a lawful search of a car without a warrant following a valid traffic stop if the following two requirements are met:

1) there exists Probable Cause to believe that the vehicle contained evidence of a crime or contraband such as drugs, a weapon or the like; and 2) an Exigent Circumstance exists which makes it impractical for police to preserve the evidence if required to undergo the hardship of obtaining a search warrant. This element will exist where an examination of the facts demonstrate rapidly unfolding, unpredictable events that involve an inherent risk of loss or destruction of evidence given the mobility of the automobile.

The trial court denied his motion, to suppress, although the judge expressed that he was troubled by the “concept of how far [the courts should] tolerate the subjective testimony of the smell of raw marijuana” when there is “no other evidence to suggest marijuana was ever in the car.”

Thereafter, he pled guilty to one count of second-degree unlawful possession of a weapon and was sentenced to five years’ imprisonment.

The Appellate Division subsequently affirmed the conviction and sentence, finding no error in the trial court’s admission of the evidence seized from the engine compartment and trunk.

However, the State's highest court has now reversed this decision, finding that the seized evidence should be suppressed - ultimately permitting for the defendant to withdraw his guilty plea.

The Court noted that the cases in which our courts have upheld searches that extended to the trunk or other areas beyond the passenger compartment have involved facts indicating something more than simply detecting the smell of marijuana from the interior of the car.

"Applying those principles and ... the New Jersey Constitution to this case, we find that the officers did not have probable cause to search the engine compartment or the trunk and thus exceeded the scope of the automobile exception to the warrant requirement," wrote Justice Pierre-louis for a unanimous court.

The court did agree that the initial search in the passenger compartment was valid under the automobile exception because the officer had probable cause to initiate that search. However, after the search of the car’s interior did not reveal marijuana, the police officers' expansion of the search to separate areas of the vehicle -- beyond the compartment from which Trooper Travis initially detected the smell -- despite no unique facts that indicated raw marijuana was in either the engine compartment or trunk, was "indiscriminately expanded," the Court declared.

Had the smell of raw marijuana emanated from under the hood of the vehicle, that could have justified expanding the search. Similarly, had Trooper Travis indicated that the smell was of such magnitude as to necessarily emanate from a large cargo space such as a trunk, the question of probable cause would have been closer. Here, however, Trooper Travis made no such observation that the marijuana smell was stronger in certain areas of the car and provided no reasoning for expanding the search to the hood and the trunk.

Additionally, Trooper Travis had no definitive information that Cohen possessed marijuana because his initial search did not reveal any illegal
contraband. Neither the smell nor the “shake in defendant’s beard” fulfilled the requirement that an officer have specific justification to extend a
search under the automobile exception beyond the defendant’s person and the passenger compartment. And any information contained in or suggested by the BOLO could not contribute to a probable cause determination based on the trooper’s smell of marijuana.

"Accordingly, we find that Trooper Travis’s searches of the engine compartment and trunk were unlawful, and the evidence seized from those illegal searches must therefore be suppressed.

"For the foregoing reasons, the motion to suppress should have been granted, so we reverse the Appellate Division’s judgment and remand the matter for further proceedings consistent with this opinion. On remand, defendant shall be given the opportunity to withdraw his guilty plea," wrote Justice Pierre-louis for a unanimous Court.

The Court did clarify that this ruling in no way suggests that areas within the interior of the car would require separate probable cause findings in order to conduct a warrantless search. We are not dividing up the interior of vehicles such that an officer would need to establish different or additional probable cause to search the front seat as opposed to the back seat, for example. Pursuant to the automobile exception, if an officer has probable cause to search the interior of the vehicle, that probable cause encompasses the entirety of the interior.

We are also not suggesting that the warrantless search of a trunk or engine compartment will always require separate probable cause findings. Instead, we reiterate that a warrantless search of a car “must be reasonable in scope” and “strictly tied to and justified by the circumstances which rendered its initiation permissible.” However, a generalized smell of raw marijuana does not justify a search of every compartment of an automobile.

The winning attorney was Raymond L. Hamlin Esq. for the law firm of Hunt, Hamlin & Ridley.

All in the same day, the Appellate Division affirmed a trial court decision suppressing the seizure of multiple guns, including automatic weapons, over 100,000 rounds of ammunition, and illegal drugs from a home and garage - all because officers failed to first obtain a warrant, and the circumstances did not satisfy any warrant exception cases.

On June 8, 2022, Erik Vandevelde's friend Dan Conroy called 911 to report that Erik was punching himself in the head while waving a gun in the air.

Corporal Field was dispatched to do a welfare check with other officers around 11:08 p.m. Corporal Field spoke to Conroy by phone and learned Conroy did not witness this behavior. Erik's brother Donald Vandevelde had been with Erik earlier and he was the person who called Conroy to express concern over Erik's behavior. Corporal Field learned from Conroy that Erik owned several guns, including four to five handguns and three AR-15 style weapons.

Due to Conroy's 911 report about Erik's firearms, Corporal Field considered this a high-risk welfare check. Therefore, prior to arriving at Erik's residence, Corporal Field and the other officers met at a nearby elementary school to plan their approach to the welfare check.

While at the school, Corporal Field called Donald to get additional details. In that call, Corporal Field learned Donald was no longer at Erik's home, and that Erik appeared "irate." Donald told Corporal Field that Erik had experienced "a difficult couple of weeks." Donald also denied any knowledge of the gun mentioned by Conroy in the 911 call, and that he did not know whether his brother was alone in the residence. As a result of what he learned, Corporal Field checked to see if Erik had any firearms registered to him. He learned there were none.

The officers arrived at Erik's house at around 11:34pm. The home had security cameras and all of the exterior lights were off. The premises was quiet. Partially closed blinds and curtains revealed some interior lights were on.

The officers knocked on the front door with no response. They heard snoring sounds coming from the glass sliding doors on the patio. They could see through the glass doors and observed a handgun and rifle scope cover lying on a pool table.

Sometime afterwards, Corporal Field told another officer, "he's alone." One of the officers then alerted the others that he saw movement in the house towards the front door. Erik finally emerged from the front door at approximately 12:30am. The officers escorted him onto the porch and patted him down for weapons. They asked him if there was anyone else in the house. He said no. Erik stayed on the front porch with Corporal Field while other officers entered the residence to search for possible victims or threats to officer safety. According to Corporal Field, the officers went into the home because they did not know if Erik was alone.

While inside the residence, the officers only searched places large enough for a person to fit. Corporal Field eventually entered the home and picked up the gun the police had earlier observed on the pool table. He confirmed it was unloaded and returned it to the pool table. When Corporal Field asked Erik who owned the gun, he replied that he did not know. Erik went on to mention that Donald had been at his house earlier that day, and owned guns. Erik denied punching himself in the head or raising his voice and claimed that he had been sleeping all day.

Corporal Field next went back into Erik's home to check the serial number on the pool table gun and learned it was reported stolen. The officers then arrested Erik. A criminal background check revealed that he was a certain person ineligible to possess firearms. Based on this information, police obtained and executed a search warrant for Erik's residence. The police recovered substantial contraband, including but not limited to four assault weapons, seven other guns, over 100,000 rounds of ammunition, more than 100 high-capacity magazines, and various illegal drugs.

Erik was charged with third-degree receiving stolen property, as well as multiple drug and weapons charges.

Subsequently he filed a Motion to Suppress Evidence.

The trial court judge found the following facts: two officers went into defendant's house to perform a protective sweep; the officers entered the house "less than a minute" after Erik emerged from the house to speak with the them; at the time the two officers entered the house, Erik was not under arrest, there were no outstanding warrants for his arrest, and his criminal history was unknown; during the protective sweep, Corporal Field picked up and checked the handgun to ensure it was not loaded, then replaced it on the pool table; after Erik told Corporal Field he did not know who owned the handgun, Corporal Field re-entered the home to get the serial number on the gun, as the serial number could not be seen from the officers' vantage point outside the sliding door.

Based on this record, the trial court rejected the three warrantless search exceptions argued by the State: protective sweep; community caretaking; and inevitable discovery. The Court therefore granted Erik's motion to suppress evidence.

The Prosecutors filed an appeal, arguing that the facts of the case did meet the warrantless search exceptions of protective sweep; community caretaking; and inevitable discovery.

The Appellate Division has now tossed out this appeal, affirming the trial court's ruling to suppress the evidence.

"There was no movement inside the house for over an hour; there was no noise detected besides snoring for the same period of time; and no one seen approaching the pool table gun during that time. Additionally, Corporal Field told his fellow officers that Erik was alone. Erik was not under arrest or suspected of a crime when police encountered him on his porch during the welfare check. He was not brandishing a gun. He was coherent and cooperative when he answered the door. On the porch, he did not exhibit any state of distress," Judges Whipple, Mawla and Smith noted.

"Although the gun was visible from outside the house, guns are not inherently contraband. On this record the Prosecutors cannot claim it is inevitable they would have discovered the gun was stolen by simply observing it on the pool table from outside of Erik's home," the court added.

"The Prosecutors' argument that the police could not reasonably leave the gun with someone they believed had been acting erratically earlier in the day is unsupported by the record. The officers never witnessed Erik behaving erratically, and the trial court found the record unclear concerning how much time had elapsed since Donald and defendant's girlfriend had made the observations of Erik which prompted the 911 call.

"While we are mindful of the challenging circumstances faced by these officers during a welfare check, we nonetheless conclude the officers exceeded their authority when they conducted a warrantless search of defendant's home by entering defendant's home and obtaining the serial number on the pool table gun. Therefore, the evidence seized, including subsequently pursuant to a warrant, was properly suppressed and the trial court did not abuse its discretion," the Appellate panel concluded.

Assistant Deputy Public Defender Austin J. Howard Esq. is the winning attorney.

This is yet another case where higher courts declared, "cops in the Garden State are not free to do as they please."

As previously reported here on FAA News, the Appellate Division recently tossed out a drug possession conviction, finding that the law enforcement officers failed to first obtain a search warrant and their Prosecutor failed to prove there were "exigent circumstances" that made it impracticable for them to obtain a warrant.

Just last month, as reported here on FAA News, the New Jersey Supreme Court tossed a five-year incarceration term of Anthony Miranda.

While Miranda was placed under arrest and transported to jail, police searched his property without a warrant.

"Police can only search someone’s property or belongings without a warrant in exigent circumstances, including if a suspect is likely to flee, hurt someone, or destroy evidence and if police are in “hot pursuit” of a suspect during the time it would take to secure a warrant," wrote Justice Anne Patterson.

As previously reported here on FAA News, back in March 2023, the court decreed that police stopping motorists to investigate crimes cannot search their cars without a warrant unless the circumstances that sparked their suspicion were “unforeseeable and spontaneous.”

Additionally, in January 2022, the court ruled that police who arrest people outside their homes can’t then enter and search their homes without a warrant unless there’s a clear potential of life-threatening danger to officers on the scene.

These case ruling may be very applicable to a Lakewood matter.

As previously reported here on FAA News, shocking footage shows Lakewood Police Detective Sergeant Tyler Distefano violating a Lakewood resident's constitutional rights numerous times - at 2am!

Upon arrival at the residence, just before 2am on a Saturday night, officers shone flashlights into the vehicle in the driveway and decided that they had sufficiently seen "evidence of a crime" inside the vehicle.

The resident of the home called out over the doorbell "can you get off my property?," to which they responded "no sir." The resident pressed on, asking, "do you have a warrant to be here?" The officers shocking responded "it doesn't work that way. I don't need a warrant to be here!"

They used their "evidence of a crime" - which they searched with no warrant - as a basis to arrest the resident.

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