In a truly unique case, the New Jersey Appellate Division today again declared, "cops in the Garden State are not free to do as they please without regard for the law and civil rights."
The reviewing court today tossed out an indictment for unlawful possession of a weapon, and possession of cocaine, a controlled dangerous substance - all because the investigatory stop was based on a vehicle parked in two spaces in a Turnpike rest area, which the court found is not actually illegal, and because observing someone using rolling papers, an item legal to possess and to use, does not provide police with reasonable and particularized suspicion that a crime is being committed.
On November 23, 2020, five New Jersey State Police officers were conducting an intelligence led policing ("ILP") detail at the New Jersey Turnpike's Molly Pitcher Service Area in Cranbury Township.
This policing detail involves plain-clothes quality of life enforcement officers observing the kind of crimes occurring at the service area and to either deter and prevent those crimes or apprehend suspects committing these crimes.
Generally, the officers looked for marijuana and
heroin use, and any
"suspicious activity" from motorists parked away from the building and other
motorists.
On this specific day, in the middle of the afternoon, the police officers spotted a silver Dodge Caravan with Illinois plates and tinted windows in the passenger area pull into a space in either the furthest spot from the building or close to it.
The officers observed that the van, a rental registered to Enterprise, was occupying two parking spaces. As they got closer to the vehicle, they clearly saw two Black women sitting in the driver and front passenger seats. The woman in the passenger seat took a marijuana cigarette, brought it up to her lips as she was licking it shut and twisting the ends closed.
As the women then drove toward the exit to depart, Detective Silvestre pulled in front of the van to block its way. Another unmarked troop car pulled alongside. None of the van's occupants made any furtive movements as the officers approached, however, the immediately smelled raw marijuana.
After ascertaining that none of the occupants of the vehicle had a medical marijuana card, and
both the driver and the front seat passenger had handed over hand-rolled
cigarettes, the officers removed everyone from the van and sat them on a
nearby curb. They searched the vehicle and seized marijuana, crack cocaine and a Taurus semi-automatic handgun with no
magazine.
Shadi D. Allie, who was sitting in the front passenger seat, filed a Motion to Suppress Evidence, arguing that vehicle stop and search was warrantless.
The Middlesex County Prosecutor argued that the van parked illegally, and that Detective Silvestre watched Allie hand-roll a cigarette containing marijuana and not tobacco,
The detective testified that he "knew" the "white, hand-rolled cigarette" he saw Allie lick close and place in her mouth was marijuana and not tobacco based on his "training and experience." Asked how his training and experience allowed him to differentiate between a hand-rolled tobacco cigarette and a marijuana "joint" from even ten feet away, much less the ten or fifteen yards from where he watched, the detective testified in his "training and experience, [he'd] never seen somebody rolling a tobacco cigarette."
The detective also testified he was not "aware of how hand rolled
tobacco cigarettes are prepared," and although he knew "people can hand roll tobacco cigarettes" and that they are legal in New Jersey, he'd never seen
anyone do it and had not received any training in how "to distinguish a cigarette that was marijuana versus a lawful tobacco cigarette." He
nevertheless insisted his experience made him "one hundred percent positive
that that person was rolling a marijuana cigarette," and that anyone he saw
licking closed a white cigarette in the manner defendant was doing "is under
the veil of suspicion."
Detective Silvestre also testified that because the vehicle was parked in two spaces, it was "parked illegally," and that he had stopped vehicles in the past over illegal parking.
The judge denied the Motion to Suppress Evidence, concluding that the troopers did have reasonable suspicion to conduct an investigatory stop.
The judge found that the detective, while working a quality
of life detail at the Molly Pitcher Service Area, "spotted a double-parked
Dodge Caravan from about four parking spots away." The judge found
the double parking was a violation and that it "piqued" the detective's interest. The judge
further found the detective "observed two females in the front seat, one of
which was holding up a white, rolled cigarette to her mouth to lick it closed.
From his training and experience, Detective Silvestre recognized this to be a
marijuana cigarette," and that those "facts alone were sufficient to give
Detective Silvestre reasonable suspicion to conduct an investigatory stop."
Following the denial of her Motion to Suppress Evidence, Allie was indicted for second-degree unlawful possession of a weapon, and third-degree possession of cocaine, a controlled dangerous substance.
Allie then filed an appeal to the Appellate Division, reprising her arguments to the trial judge that the
Prosecutor failed to present evidence of a parking violation and that "observing
someone using rolling papers, an item legal to possess and to use, does not provide police with reasonable and particularized suspicion that a crime is
being committed."
Judges Accurso and Natali agreed on both points, saying that while the facts here are undisputed, they disagree about what those facts mean for the constitutionality of this vehicle stop.
Neither the State nor defendant disputes that this was an investigatory
stop, requiring the State to prove by a preponderance of the evidence that the troopers had "a reasonable and
articulable suspicion that the driver of the vehicle, or its occupants, was
committing a motor-vehicle violation or a criminal or disorderly persons
offense," State v. Scriven.
Our role is to assess
whether the facts available to the officer at the moment of the seizure warranted a person of reasonable caution in the belief that the action taken
was appropriate. Alessi, quoting
State v. Mann.
In numerous cases where courts upheld investigatory stops, the officer possessed an objectively reasonable belief that the collective circumstances were consistent with criminal conduct. I.e. a reasonable person would find the actions are consistent with guilt.
This key factor is what distinguishes this case from the cases where the courts did uphold the investigatory stop.
"Here, Detective Silvestre had no prior dealings with or knowledge of any
of the occupants of the Caravan, including defendant. A rented passenger
vehicle with out-of-state plates is certainly not uncommon on the Turnpike,
especially in the days leading up to the Thanksgiving holiday. The encounter
was in broad daylight, and while the detective claimed that marijuana and
heroin use in the parking area of the service plaza was "frequent," he did not
describe the Molly Pitcher Service Area as a high crime area. None of the
occupants of the Caravan appeared nervous to the detective or tried to avoid
him; indeed, he described them as unaware they were being observed,
exhibiting none of the heightened awareness of surroundings common to those
engaged in criminal conduct. When they finally became aware of his presence,
they were calm and cooperative, not nervous and evasive.
"Most important, of course, is the point defense counsel made repeatedly at the suppression hearing — there is nothing illegal or suspicious about a person rolling her own cigarette. And although the detective testified he'd never seen anyone do so before, it is not uncommon among certain groups of smokers, especially given the expense of commercial cigarettes and that rolling papers and loose tobacco are readily available in many places.
"We simply
cannot find the detective's "one hundred percent positive" conviction that defendant "was rolling a marijuana cigarette" to have been an objectively
reasonable belief under the circumstances.
Nothing in the detective's training and experience allowed him to differentiate
between a hand-rolled tobacco cigarette and a hand-rolled marijuana one based only on observation from a distance of ten or fifteen yards away. The
detective testified unequivocally he'd never received any training in doing so,
and he'd never even seen anyone roll a cigarette with loose tobacco. Casting
anyone rolling their own cigarettes "under the veil of suspicion," places
individuals engaged in perfectly legal conduct "susceptible to constant police
investigation," an obviously "unacceptable proposition." State v. Stampone.
The Court also took issue with Detective Silvestre's testimony that his initial investigatory stop was based on the "illegal parking," noting what while State law does prohibit double-parking, there is no actual prohibition against "occupying two spaces" in a parking lot in a service area along the Turnpike.
"Because the troopers lacked reasonable suspicion to have instigated an investigatory stop of the Caravan, we reverse the denial of defendant's suppression motion and remand for further proceedings consistent with this opinion," Judges Accurso and Natali concluded.
This reversal effectively tosses out Allie's indictment for second-degree unlawful possession of a weapon, and third-degree possession of cocaine, a controlled dangerous substance.
The winning attorneys are Public Defender Joseph E. Krakora and Assistant Deputy Public Defender Michael Denny Esq.
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.
As reported here on FAA News, just last week, the Appellate Division tossed a gun possession conviction, saying that the "stop and frisk" was based solely on an anonymous tip and the defendant's "unusual" body movements, which were simply insufficient for "a reasonable suspicion," and therefore the search was warrantless.
As reported here on FAA News, last month, the New Jersey Supreme Court tossed a conviction which was based on 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 to search the engine compartment and trunk, where he ultimately found weapons. The court ruled that searching the trunk in this case crossed the boundaries of the warrant exception and therefore the search was with warrantless.
On the very 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.
As previously reported here on FAA News, also last month, the Appellate Division 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.
As previously 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 Supreme 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 rulings may be very applicable to a currently pending 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 then arrest the resident.
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