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Once again, cops were reminded that they also need to follow the rules if they want the evidence to be admissible.

The New Jersey Appellate Division has just tossed a twenty year long prison sentence for drug charges because the police officers failed to secure a warrant to search the defendant's vehicle after an investigative stop, and the warrant exceptions did not apply as "the weeks-old tip, the subsequent surveillance of defendant at work, and the surveillance of the drug transaction at the parking lot demonstrate the circumstances that gave rise to probable cause were foreseeable. The facts also do not convince us of spontaneity, but rather show police reasonably anticipated finding drugs in defendant's vehicle. The police should have impounded the vehicle and secured a warrant."

On or about June 19, 2019, Sergeant Christopher Sorber, a fourteen-year veteran of the Edison Police Department received an anonymous tip from a concerned citizen, alleging Alberto Martinez distributed heroin from a Dunkin' Donuts parking lot on Woodbridge Avenue in Edison. The tipster stated that Martinez worked at an adjacent Mavis Discount Tire and would frequently "walk over or drive . . . into the lot of the Dunkin' Donuts throughout the day . . . in a silver Chevy Impala." Sergeant Sorber performed a motor vehicle records search and confirmed the vehicle belonged to Martinez.

On July 3, 2019, at approximately 4:30 p.m., the sergeant and two officers conducted surveillance in separate, unmarked vehicles near the Dunkin' Donuts and Mavis parking lots. An hour later, Sergeant Sorber saw Martinez leave Mavis, enter the Impala, and pull into a spot near the Dunkin' Donuts parking lot. Joseph Benko approached and entered Martinez's vehicle.

Sergeant Sorber was not able to "physically see their bodies in the car" because Martinez's vehicle had tinted windows; however, he was advised Martinez and Benko were in the vehicle, which was confirmed by the other officers via radio.

Less than a minute later, Benko exited the Impala and "walked over two spots in the same parking lot" and approached the driver side door of a white GMC van. Benko "handed the individual in [the GMC] something through the window." Almost immediately, Martinez reversed his vehicle from the Dunkin' Donuts lot. Sergeant Sorber blocked Martinez's vehicle with his police vehicle, preventing it from exiting the lot. He ordered him to exit the vehicle and arrested him. 

At the same time, another officer held the GMC driver at gunpoint and saw that Benko tossed an item under an adjacent vehicle. The officer arrested Benko and Michael Iacobacci, who was the driver of the GMC, and recovered two bundles of heroin stamped "Mike Tyson." Subsequently, Sergeant Sorber searched Martinez's vehicle and found a bookbag containing a digital scale, $1,800 cash, plastic "baggies," heroin, cocaine, and his Mavis pay stub.

Martinez filed a motion to suppress evidence from the warrantless vehicle search.

The Middlesex County Superior Court trial judge credited Sergeant Sorber's testimony, and made the following findings:

Based on the officer's training and experience and based on the totality of the circumstances, including the concerned citizen's tip, [Sergeant Sorber] believed that what he observed was a drug transaction.

The search of the vehicle did not occur at that point in time, but rather it occurred after the police then found on the ground in the area where they observed Benko throw two bricks of heroin. So, it was at that point in time that [Sergeant Sorber] testified that he believed he had probable cause to search the vehicle and that he was then permitted to do so. And the legal justification provided by the State is one, there was clearly probable cause, but secondly, there was no need for a warrant under the guidelines of State v. Witt.

The judge made supplemental written findings stating: "The encounter between police and Martinez as an investigatory stop [was] justified by reasonable suspicion." He noted Sergeant Sorber "observed Benko exit Martinez's vehicle, walk over to Iacobacci's vehicle, and hand him an item." Based on this observation, [Sergeant] Sorber testified that he believed, based on his considerable training and experience, that a drug transaction had just occurred. As a result, in this case, the State presented evidence that not only corroborated the innocent details of the tip (the type of car and location) but also the illegality asserted in the tip (drug trafficking). Based on the totality of these circumstances, it was proper for an investigatory stop to occur. 

The judge also found "police had probable cause to search Martinez's vehicle without a warrant pursuant to the automobile exception to the warrant requirement." Also, "police lawfully seized two bundles of heroin because by throwing it on the ground, Benko voluntarily abandoned it, thereby giving up his privacy interest in it."

Further, the judge found that the warrantless search of Martinez's vehicle was justified because "the circumstances giving rise to probable cause were spontaneous and unforeseeable for four different reasons." The judge noted the tip was two weeks old, and police did not have any expectations that day because the tipster did not provide a specific timeframe when defendant engaged in drug transactions. The events in the parking lot quickly unfolded and "the incident occurred in less than a minute's time . . . . Two of the three defendants were in a mobile vehicle and could presumably leave the scene at any point." The "incident did not occur in a quiet area away from the general public" but instead during rush hour in a parking lot near a highly travelled corridor and "the urgency of protecting officer and citizen safety was present at the scene . . . ."

At Martinez's trial, Sergeant Sorber described his qualifications and the underlying facts of the case consistently with his testimony at the suppression motion hearing.

The following exchange took place when the Prosecutor inquired about his observations after Benko entered defendant's vehicle:

[SGT. SORBER:] After a very short amount of time, the front seat passenger exited the vehicle, and then, he walked two cars over to a white GMC work van. 

[STATE:] Now, you say a short period of time. . . . 

[C]an you estimate how long that other individual was inside the Chevy Impala? 

[SGT. SORBER:] Thirty seconds. 

[STATE:] At that point, did that give you suspicion? 

[SGT. SORBER:] Yes. 

[STATE:] Why? 

[SGT. SORBER:] As a narcotics detective, short meetings in public places . . . sets off bells for me, because it screams some type of criminality, because you don't want to meet for long period of times if you're doing anything illegal. You want to make it as brief and as short as possible.

The sergeant then described the search of defendant's vehicle and the discovery of a digital scale located inside a backpack. He explained the relevance of the scale as follows: "[T]hrough my training and experience as a narcotics detective, typically, an individual that is carrying around a digital scale and has drugs on them . . . in my eyes, it's a form of distribution. They're packaging, and they're weighing it out to distribute." 

Sergeant Sorber also made the following remarks at trial: (1) "The totality of everything I observed was a money for drug transaction;" (2) "Once the drug would be weighed out on the scale, it needs to be packaged, and it would be put into the plastic bag for sale;" (3) "Typically, cell phones are used to communicate . . . between a drug dealer and the user to set up a deal;" (4) "Cash is at least the preferred method of transacting;" and (5) Wax folds are . . . typically cut with . . . another substance that could make it more potent, such as fentanyl, or a derivative of. So, because of that . . . type of substance, the most minute amount of it that either seeps into your skin or goes airborne by just picking up a bag can kill you. 

Iacobacci recounted the events leading up to his arrest. He testified he was a recovering opioid addict and Benko had texted him to purchase heroin and meet at the Dunkin' Donuts. He drove to the Dunkin' Donuts and waited approximately ten minutes for Benko to arrive. Once Benko arrived, he entered Iacobacci's vehicle, and discussed purchasing two bundles of heroin for $100. After Iacobacci gave Benko the money, Benko left the white GMC and entered Martinez's vehicle, which was parked near the Dunkin' Donuts lot. Benko remained in Martinez's vehicle for approximately a minute and a half, then returned to the GMC, and both were apprehended. Iacobacci also saw Martinez being arrested near the Impala. 

Benko testified he was also a recovering opioid addict and planned to meet with Iacobacci to purchase four bundles of heroin. Benko also agreed to meet Martinez at the Dunkin' Donuts parking lot. He described the drug transaction and arrest in the same manner as Iacobacci.

Sergeant Celentano testified he served twenty-two years as a law enforcement officer. He explained his background and experience with the Middlesex County Sheriff's Department, involvement with the narcotics task force, and employment with the MCPO. The court qualified him as an expert in the field of illegal drug use and distribution. He described the process for cocaine and heroin distribution, primarily packaging and branding stamps, and the amount of drugs generally contained in glassine envelopes, "balls," and bundles of heroin. He also explained the surveillance process and how narcotics are commonly sold. 

Martinez claimed the items seized from his car belonged to Benko and denied he was involved in any drug sale. He could not explain why his pay stub was found in the bag, but suggested police planted it during their search.

A grand jury indicted him on: second-degree conspiracy to possess heroin and/or fentanyl with intent to distribute; third-degree possession of heroin and/or fentanyl; second-degree possession with intent to distribute heroin and/or fentanyl; third-degree distribution of heroin and/or fentanyl; third-degree possession of cocaine; second-degree possession of cocaine with intent to distribute; and third-degree financial facilitation of criminal activity.

At sentencing, the judge gave considerable weight to several aggravating factors and found no mitigating factors. Martinez was sentenced to an aggregate sentence of twenty years, subject to eight years of parole ineligibility.

In a written ruling just released, Appellate Division Judges Sabatino and Mawla have now completely vacated this conviction and sentencing, finding that the search did not meet any warrant requirement exception.

The Fourth Amendment of the United States Constitution, as well as Article I, Paragraph 7 of the New Jersey Constitution, guarantees "the right of the people to be secure . . . against unreasonable searches and seizures."

Warrantless searches are permissible only if justified by one of the few specifically established and well-delineated exceptions to the warrant requirement. State v. Robinson.

Under the automobile exception to the warrant requirement, a vehicle may be searched without a warrant where: (1) "the police have probable cause to believe that the vehicle contains contraband or evidence of an offense," and (2) "the circumstances giving rise to probable cause are unforeseeable and spontaneous." State v. Witt.

Recently, our Supreme Court in Smart and State v. Cohen upheld the longstanding principle that the State must prove the ripening of probable cause was both "unforeseeable and spontaneous." (Read more regarding the Smart case here on FAA News. Read more regarding the Cohen case here on FAA News).

When a motor vehicle is subject to an investigatory stop a police officer must have a reasonable and articulable suspicion that the driver of a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal or disorderly persons offense to justify a stop. State v. Scriven.

Probable cause exists if at the time of the police action there is a well-grounded suspicion that a crime has been or is being committed. State v. Sullivan.

Probable cause requires a practical, common-sense decision whether, given all the circumstances... there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Demeter.

A court must consider whether the totality of the facts presented to the arresting officer would support a person of reasonable caution in the belief that an offense has been or is being committed. State v. Sims.

In reviewing the facts of an investigatory stop, the court considers the totality of the circumstances. This includes a police officer's background and training, and their ability to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. State v. Nelson, quoting United States v. Arvizu.

An officer's actions must be considered in conjunction with the specific reasonable inferences which [they are] entitled to draw from the facts in light of [their] experience." Terry v. Ohio.

Sergeant Sorber received the tip two weeks prior to Martinez's arrest. The tipster provided his name, place of employment, and the type of automobile he operated, allowing the sergeant to search motor vehicle records and confirm his ownership. The tipster also described how Martinez traveled to the Dunkin' Donuts and the type of drugs he sold.

Police surveilled his vehicle, and although they could not see into it, they observed Benko exit Martinez's car just thirty seconds after he entered and give Iacobacci "something" prior to entering the GMC van. Based on these facts and circumstances as well as Sergeant Sorber's experience, background, and training, there was sufficient reasonable suspicion for him to believe a drug transaction occurred and he could conduct an investigatory stop. 

However, we part ways with the trial judge that the circumstances allowed police to conduct a warrantless search of Martinez's vehicle. The judge relied on the fact Benko tossed a bundle of heroin underneath an adjacent vehicle, but this arguably unpredictable discrete act did not validate the warrantless search of Martinez's vehicle. 

The weeks-old tip, the subsequent surveillance of defendant at work, and the surveillance of the drug transaction at the Dunkin' Donuts parking lot, demonstrate the circumstances that gave rise to probable cause were foreseeable. 

The facts also do not convince us of spontaneity, but rather show police reasonably anticipated finding drugs in defendant's vehicle. The police should have impounded the vehicle and secured a warrant. See Smart, and also Rodriguez, stating Witt "affords police officers at the scene the discretion to choose between searching the vehicle immediately if they spontaneously have probable cause to do so, or to have the vehicle removed and impounded and seek a search warrant later." 

For these reasons, the order denying the suppression motion is reversed. Accordingly, defendant's conviction, which was in part founded upon the seized evidence admitted at trial, must be reversed, the Appellate panel concluded.

Martinez was represented by Assistant Deputy Public Defender Colin Sheehan.

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