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Yet again, the New Jersey Appellate Division has declared that cops need to follow all of the rules if they want evidence to be admissible and charges to be affirmed.

On November 17, 2020, at approximately 5:34 p.m., Lower Township Police Department officers Kyly Boyle and Hayden Denham were dispatched to a call for assistance at an apartment related to an Emotionally Disturbed Person.

While inside the apartment, Boyle noticed a bathroom door that was closed.

Approximately a half-hour after police arrived at the apartment, the bathroom door opened. Boyle saw Joshua Nolan standing inside the bathroom quickly stuffing his hands in his sweatshirt pocket. Boyle recognized Nolan as someone he had encountered before and knew him as a drug user.

The following conversation ensued, captured by Boyle's body-worn camera:

[BOYLE]: Hello. Sir? Hi.
[NOLAN]: Hello. What's up?
[BOYLE]: You've been in there the entire time?
[NOLAN]: Huh?
[BOYLE]: You been in here the entire time?
[NOLAN]: Yeah, hiding from you guys.
[DENHAM]: What's up, Josh? What's going on, man? ...
[BOYLE]: What are you doing in there? Stuffing your pockets.
[NOLAN]: No, I'm not.
[BOYLE]: I know. But when the door opened, you
stuffed something in your pockets. And you're still
holding --
[NOLAN]: It's my cigarettes.

The following exchange took place immediately after Nolan removed the pack of cigarettes from his pocket.

[BOYLE]: And what else?
[NOLAN]: It's trash dude. It's trash.
[BOYLE]: What else is in there, bud?
[NOLAN]: Nothing.
[BOYLE]: I literally see something in your pouch.
[NOLAN]: Nothing.
[BOYLE]: Josh, it's in there. What is that, in your
sweatshirt pouch?
[NOLAN]: There's nothing in there. It's my debit card. It's trash. That's what I'm trying to tell you.
[BOYLE]: I'm asking you to show me all of it. Where
is the -- where is the trash?
[DEFENDANT]: I don't need to show you it.
[BOYLE]: You're being shady. You're hiding from us. Why are you hiding from us? Because I don't want --
[NOLAN]: Why -- why would I want to see you
[BOYLE]: Why -- why aren't you helping her? She
clearly needs help.

[WOMAN IN THE RESIDENT]: He uses (indiscernible).
[NOLAN]: This is all it was. It was a piece of trash, dude. I'm throwing it out.
[BOYLE]: Let me see it. That's a wax fold.
[NOLAN]: There's nothing in it though.
[BOYLE]: That's paraphernalia though.
[WOMAN IN THE RESIDENT.]: (Indiscernible) in my house, Joshua.

After Boyle confirmed Nolan had a "wax fold" in his hand, he placed him under arrest and directed Denham to take him to the police car. An ensuing search incident to arrest revealed several empty wax folds, a hypodermic syringe, a cotton ball, an empty clear glassine baggie, and a clear glassine baggie containing a clear crystal-like substance, believed to be methamphetamine.

Nolan filed a Motion to Suppress Evidence, arguing that the officers did not have a search warrant to search him, and the search did not qualify under any of the warrant exceptions.

At the motion hearing, Officer Boyle testified that he was concerned when Nolan started to put his hands in his sweatshirt pocket, saying, "I have no idea what's in that sweatshirt pocket at this point. It could be a weapon; it could be anything."

Boyle additionally testified that throughout the conversation, Nolan had his hands in the pocket
of his sweatshirt, moving something around. Boyle claimed he could hear a rustling noise indicating there was something in the pocket. He testified that after Nolan showed him the cigarette pack, his sweatshirt pocket "remained open, like, out for a little bit," enabling the officer to see that there
was something else inside. Boyle testified he saw a "cotton ball accompanied by what appeared to be a white wax fold." He also testified that based upon his experience and training, cotton balls were a form of paraphernalia used by individuals who inject CDS.

On cross-examination, Boyle did acknowledge that it is neither illegal nor uncommon for members of the community to avoid contact with the police,
and that it is not illegal or abnormal for people to put their hands in their pocket.

Boyle further acknowledged it was not "immediately apparent" that the item was a wax fold, "because if it was, I would have taken him in custody in the bathroom right there immediately."

The Cape May County trial judge denied the motion to suppress.

The court found that Boyle and Denham were lawfully in the home. The court noted that Nolan was "sticking his hands into a sweatshirt pocket"
when the bathroom door opened and "the officer candidly testified in a way that can only be truthful; he had . . . no idea what was in the sweatshirt pocket. How would he know? And then Nolan again said he was hiding from the police."

Additionally, the court found that when Boyle asked what was in the pocket, Nolan refused to tell him, repeatedly saying there was "nothing" in his pocket. The motion court found that based on Nolan's behavior, the officers had reasonable articulable suspicion of criminal activity to detain him and ask further questions. It also concluded that Boyle's questions were logical and appropriate in view of Nolan's admission that he had been hiding from police.

The motion court acknowledged that asking someone to reveal the contents of their pocket is the functional equivalent of a search. The court
concluded, however, that Boyle had probable cause to believe Nolan was in possession of drug paraphernalia once he saw in plain view a cotton ball and what appeared to be a wax fold inside Nolan's pocket. The court added that once Nolan handed Boyle a folded empty wax fold, Boyle had probable cause to arrest him. On that basis, the court denied Nolan's suppression motion.

In a written ruling just released, Appellate Division Judges Geiger, Susswein, and Berdote Byrne have now reversed the denial of Nolan's suppression motion, effectively tossing the charges.

The Appellate judges agreed that the motion court correctly recognized the officer's request that Nolan show him the contents of his pocket was the functional equivalent of a search.


Because that search was not authorized by a warrant, the direction would only be lawful if, at that specific moment, Boyle had probable cause to initiate a search incident to a lawful arrest (this is a common-law rule permitting searches of the person of an arrestee as an incident to the arrest).

We part company with the motion court with respect to its determination that Boyle had probable cause to make a custodial arrest when he directed Nolan to empty his pockets. Boyle testified that what he saw in Nolan's pocket was a "cotton ball accompanied by what appeared to be a white wax fold." Boyle then candidly acknowledged that it was not "immediately apparent" that the item was a wax fold, explaining "if it was apparent, I would have taken him in to custody in the bathroom right there immediately."

Under the plain view doctrine, the State must
prove by a preponderance of the evidence not only that the officer was lawfully present when he or she observed and seized the incriminating item or contraband but also that it was "immediately apparent that the seized item is evidence of a
crime." State v. Gonzales, requiring "probable cause to believe that an object in plain view is contraband without conducting some further search of the object" to determine its incriminating character.

The motion court inaccurately discounted Boyle's critical concession that it was not immediately apparent to him the paper object was a wax fold - an object commonly associated with illicit drugs.

We next consider the significance of the cotton ball as part of the totality- of-the-circumstances analysis. Even accepting Boyle's testimony regarding his training and experience in recognizing drug paraphernalia, we do not believe his observation of a cotton ball, viewed in context with the other suspicious circumstances, was sufficient to elevate the level of suspicion to the probable cause needed to justify an arrest and search incident thereto.

Considering the totality of the relevant circumstances, there was reasonable suspicion Nolan was engaged in criminal activity while hiding in the bathroom. However, especially in view of the officer's candid acknowledgment that it was not immediately apparent the item he observed was a wax fold associated with illegal drug possession, we hold the State did not meet its burden of proving there was probable cause to arrest Nolan and conduct a search incident thereto at the moment Boyle first directed him to reveal the contents of his pocket.

It follows that the formal arrest and ensuing search was a fruit of Boyle's unlawful command that Nolan reveal the contents of his pocket.

"We therefore reverse the denial of defendant's motion to suppress," the Appellate panel concluded.

The winning attorney is Assistant Deputy Public Defender Alyssa Aiello.

This is yet another instance where a higher court has reaffirmed the public's civil rights in warrantless searches, and declared that cops are not free to do as they please.

As reported here on FAA News just yesterday, the Appellate Division tossed a five-year prison sentence because the cops forced entry "too soon" after knocking on the door, in violation of the Defendants constitutional rights.

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. In this case, Miranda was in a police car being transported to jail, so none of these exigent circumstances existed.

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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