The New Jersey Appellate Division has once again affirmed the public’s civil rights in warrantless police searches.

In this ruling, the Court 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.

This ruling may also have implications for a pending criminal matter in Lakewood.

At around 5:00p.m. on April 9, 2012, Detective
Paul Miccinilli of the Paterson Police Department received an unexpected phone call from a confidential informant (CI) he had used in the past. The CI reported that a Black male driving a green Dodge Magnum would be delivering drugs (CDS) to a specific address in Paterson at about 6:30p.m. No other details were provided by the CI during the brief phone call.


At approximately 6:00p.m., Detective Miccinilli drove to that address in an unmarked police vehicle, accompanied by Detectives Russell Curving and Mario Formentin. All three were dressed in plain clothes. They parked about
seventy-five feet from the reported address and surveilled the area from inside the unmarked police vehicle. At about 6:40p.m., the detectives saw a green Dodge Magnum stop "several feet from the curb" in front of the relevant address.


The driver and sole occupant was Brandell Bailey.

The detectives saw Bailey look at the relevant house and then look back down a few times.

Detective Miccinilli then maneuvered the police vehicle into the middle of the street near Bailey's vehicle but did not activate the emergency lights. At that point—roughly thirty seconds after the Magnum stopped—all three detectives exited the police vehicle and quickly surrounded Bailey's car. Detective Miccinilli approached the driver's window, Detective Curving went to the passenger side, and Detective Formentin went to the rear of the vehicle.

As Detective Miccinilli got near the driver-side window, he observed Bailey holding a bag that appeared to contain powder cocaine. When
Bailey noticed the detectives, he dropped the bag to the floor. Detective Miccinilli then ordered him out of the car. As that was happening, Detective Curving saw a small digital scale on the front passenger seat.

Bailey complied with the detectives' orders and was handcuffed by Detective Formentin. Detective Miccinilli retrieved the bag of suspected cocaine from the floor of the Magnum while Detective Curving retrieved the scale from the passenger seat. A search of Bailey's person revealed $1,879 and a cell phone.

In October 2012, Bailey was charged by indictment
with third-degree possession of CDS, first- degree possession of CDS with intent to distribute, and third-degree possession of CDS with intent to distribute within 1,000 feet of school property. Bailey was also charged with a disorderly persons offense for possession of drug paraphernalia.

Subsequently, he filed a motion to suppress the evidence.

On cross-examination, Detective Miccinilli was asked, "at the point that you and [Detective] Curving went into the car, there hadn't been a crowd gathering or some emergency situation that required your immediate going into the car; is that correct, sir?" Detective Miccinilli replied, "correct." During Detective Curving's cross-examination, he was asked if there was anything "that gave rise to a concern for you for either your safety or for evidence being destroyed." Detective Curving responded, "well, it is Paterson. . . . It's not a good area." When defense counsel asked if anyone "did anything specifically that caused a concern for officer safety or for destruction of evidence," the detective replied, "well, nobody else did nothing, yes, but." Defense counsel cut in with "okay, thank you," and Detective Curving finished with "yeah." The prosecutor did not clarify the issue during redirect.

The trial court judge denied the motion to suppress.

Regarding the detectives' authority to stop
defendant based on the CI information, the judge ruled that the detectives did not initiate an investigative detention by the manner in which they approached the Magnum. She reasoned, "since the detectives approached the defendant's car after it came to a stop, the action they undertook thereafter to investigate the information from the confidential informant was permissible and lawful."

The judge then considered the plain view exception to the warrant requirement, explaining the three elements of that exception are:

1) the officer is lawfully present in the viewing area; 2) the officer inadvertently discovers the evidence in plain view ; and 3) it is "immediately apparent" to the officer that the items in plain view are "evidence of a crime, contraband, or otherwise subject to seizure."

The judge reasoned the first element was met because "a person categorically does not have a reasonable expectation of privacy in portions of a
car that are viewable from outside the car." She then stated the second element was inapplicable because "inadvertence is only required when the officer has intruded on a constitutionally protected area." She found the third element was satisfied because of the detectives' experience and their testimony regarding the bag of white powder and digital scale.

The judge next made findings as to whether there was exigency to excuse getting a warrant under the automobile exception, explaining "plain view
observations . . . when made pre-intrusion into a constitutionally protected location do not solely justify a warrantless intrusion and seizure."

At the time of this case, the governing case was the 2015 ruling of State v. Pena-Flores. (This ruling has since been overruled). Back at the time, this case required the State to prove there were exigent circumstances that made it "impracticable" to obtain a warrant.

The judge relied on several factors in finding exigent circumstances. First, she referenced "the nature of the neighborhood." She also noted that Bailey's car was "stopped several feet from the curb." Next, the judge suggested, "although no one exited the house while the detectives were present, someone could have removed the contraband at a later time." She then explained, "while it was light out during the incident, dusk was approaching."

Lastly, she mentioned the inherent mobility of automobiles. Based on those circumstances, the judge denied the motion to suppress, concluding "in this case, there were sufficient concerns about police safety and the preservation of evidence to permit the seizure of the evidence upon the plain view observations of the detectives."

After numerous delays, in February 2022, pursuant to a plea agreement Bailey pleaded guilty to third-degree possession of controlled drug substance, and he was sentenced to two years of probation and a total of $1,205 in fines and penalties. The remaining charges were dismissed pursuant to the plea agreement.

Appellate Division Judges Susswein and Berdote Byrne have now vacated this conviction, overturning the trial court's denial of Bailey's motion to suppress, concluding that the police entry into Bailey's vehicle to retrieve the suspected cocaine they observed from outside the car was not permitted under the automobile exception to the warrant requirement.

The governing case at the time, State v. Pena-Flores, required the State to prove there were exigent circumstances that made it "impracticable to obtain a warrant." The detective who seized the cocaine testified there were no circumstances requiring him to immediately enter Bailey's vehicle. That candid acknowledgment undercuts the trial court's finding there was sufficient exigency under the strict test announced in Pena-Flores.


Furthermore, the trial court did not consider whether probable cause arose unexpectedly, which is a separate prerequisite under Pena-Flores. The detectives were lying in wait based on information a CI had provided more than an hour before the stop and arrest. The CI described the subject vehicle and predicted precisely where and when the driver would be delivering the CDS. Although probable cause did not ripen until the detective actually saw the suspected cocaine in the defendant's hands, finding the CDS in the vehicle described by the CI was not unexpected.

"It was entirely foreseeable that the CI's tip would prove to be true. The State cannot on the one hand argue the CI's tip was reliable and at the same time contend it was unforeseeable that the CI's prediction would come to fruition. We are not suggesting the detectives had and "sat on" probable cause before the street encounter unfolded. As we have noted, the CI's tip by itself did not meet the probable cause standard needed to obtain a search warrant. Probable cause did not ripen until the detectives corroborated the tip and observed defendant holding suspected CDS. But it was foreseeable that the police decision to stake out the address specified by the CI would bear fruit. We conclude this was essentially a planned encounter where detectives were lying in wait for a suspected drug dealer driving a distinctive vehicle and headed toward a specific location at a specific time.

"Because the State cannot satisfy the elements of the automobile exception set forth in Pena-Flores, the detectives did not have lawful authority to enter defendant's vehicle. The seized CDS and paraphernalia must therefore be suppressed as a fruit of the unlawful entry," the court concluded.

The winning attorney is Steven E. Braun Esq.

Today's ruling is at least the third in which the State's highest court underscored the rights of people subjected to warrantless searches, declaring that "cops in the Garden State are not free to do as they please."

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.

This 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.

In this new Appellate Division ruling, the Court wrote:

Even accepting the State's position that Detective Miccinilli was lawfully present in the location where he viewed the CDS, the plain view doctrine on its own does not permit an intrusion into an automobile. In State v. O'Herron, we held "a 'plain view' observation made without intrusion into a constitutionally protected location does not itself justify a warrantless intrusion or seizure." That principle was reaffirmed in State v. Pineiro. Simply stated, and as the motion judge correctly noted, the plain view observation of suspected cocaine made from outside the Magnum did not automatically authorize police to enter the vehicle to retrieve the CDS. Rather, the warrantless incursion into the vehicle required some other exception to the warrant requirement.

To join a FAA News WhatsApp Group, click here.

To join the FAA News WhatsApp Status, click here.

No comments: