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The New Jersey Appellate Division has once again reminded cops that they need to legit follow the rules if they want the evidence they seize to actually be admissible.

On June 24, 2022 at 11:12 p.m., Detective Alex Flores of the New Brunswick Police Department called Judge Joseph Paone and sought a search warrant for a single-family home owned by Antonio Lima-Pineda.

Flores testified that a confidential informant (CI) provided information to law enforcement that Lima-Pineda would be receiving a delivery of firearms on either June 23, 2022, - or June 24, 2022. Flores told the judge that the subject delivery of suspected firearms, however, had occurred sometime earlier during the "late afternoon hours." 

Flores stated that as he surveilled the location in the afternoon on June 24, 2022, he noticed a black sedan arrive at the home. The sedan was operated by a person described as a tall, skinny Hispanic male with a beard. The bearded man and Lima-Pineda approached the trunk, popped it open, looked inside, and then quickly closed it again. After conversing for approximately two minutes, they opened the trunk again, and the driver retrieved a duffle bag from the trunk. The pair then walked out of view into the detached garage. Flores stated that "a couple minutes later" the CI advised him that he had received a text message from Lima-Pineda that "they're here," followed by a phone call alerting the CI that the guns had arrived.

By the time of the search warrant application at 11:12 p.m., there were three to five other people hanging around the porch area, one of whom was "the target Antonio Lima-Pineda." The CI did not provide any further information regarding the other individuals. 

Based on Flores's testimony, Judge Paone found probable cause and issued a warrant limited to a search of the premises of the home, including the detached garage, and Lima-Pineda's person, to search for the weapons delivered to the premises. 

At 12:33 a.m., members of the Middlesex County Special Operations Response Team (SORT) arrived at the scene. Officers shouted, "hands up!" to all the individuals on the porch and "on the ground" to Victor Rosario, who was standing between the house and a chain link fence. 

Rosario immediately complied by lying face down on the ground with his hands behind his back. A SORT officer then turned around with his back to him and entered the house to execute the warrant. He instructed another officer who was outside the chain link fence to keep Rosario on the ground. No frisk of Rosario was conducted by any of the SORT officers. 

A bodycam video recorded by the New Brunswick police showed Rosario was left unattended, still lying in the same prone position, while officers were shown questioning Lima-Pineda and two other men in the front yard. It was only when an unknown officer directed Flores's attention to Rosario that he finally approached him. Flores rolled Rosario over and ordered him to stand up, which he did. The detective then patted him down without asking any questions and found a gun in his left front pocket. Neither video depicted any threatening movements or gestures that would raise suspicion that Rosario was armed or dangerous.

Rosario was charged by the Middlesex County Prosecutor's Office with fourth-degree possession of a defaced firearm, fourth-degree possession of a large-capacity ammunition magazine, and second-degree unlawful possession of a weapon (a handgun).

Subsequently, he filed a motion to suppress the evidence of the weapons seized in the pat-down. On January 19, 2023, Judge Jimenez granted the motion, finding the Prosecutors failed to show there was either probable cause or a reasonable suspicion that Rosario was armed and dangerous to justify the frisk.

Notably, Judge Jimenez found that neither video depicted any threatening movements or gestures that would raise suspicion that defendant was armed or dangerous and no officer testified otherwise.

The Prosecutors appealed, arguing that the trial court's suppression of evidence should be reversed because the evidence was seized pursuant to a lawful pat-down for weapons.

In a written ruling just released, Judges Firko and Mitterhoff were not the slightest persuaded and affirmed the trial court's ruling.

In 1968, in Terry v. Ohio, the United States Supreme Court declared, "a police officer may conduct a pat-down search for weapons only if he has "reason to believe that he is dealing with an armed and dangerous individual."

The law prohibits an officer from "simply assuming that everyone is armed and dangerous until proven otherwise." Instead, the officer must point to specific facts and may not rely on "his inchoate and unparticularized suspicion or 'hunch.' State v. Garland, quoting Terry.

In 1979, eleven years after the Terry decision, the United States Supreme Court in Ybarra v. Illinois reaffirmed the principle that a frisk requires an articulable and reasonable belief that an individual is armed and presently dangerous.

The warrant in that case authorized the search of the premises and the person of the bartender for "evidence of the offense of possession of a controlled substance."

The officers additionally frisked one of the customers and found illegal substances on him.

The Supreme Court held that the lawful execution of a warrant at the premises did not supply the reasonable suspicion required for a Terry frisk of anyone not identified in the warrant.

The circumstances in this case are strikingly similar to those in Ybarra, and compel the same result. Here, as in Ybarra, there was no probable cause to search defendant based on his happenstance presence at a premises subject to a lawful search warrant, which warrant was for a specific premises and a specific individual. (See also State v. Dolly, holding that "mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause" to search a person or automobile). 

Defendant was not identified by the CI; he was not described or named in the search warrant; the execution of the warrant was remote in time from the alleged crime; there was no evidence he was present at the time of the subject weapons delivery; there was no evidence that he entered the home; and the police did not recognize him when they arrived at the scene. 

Lacking probable cause, the police were required to meet the Terry test for a frisk. As the judge found, however, and our independent review of the bodycam videos confirm, the record is devoid of any threatening or furtive conduct by defendant that would support a reasonable belief that he was armed and dangerous. He immediately complied with the officer's command to get on the ground, and he remained there with his hands behind his back despite being left unattended for a period of time. We do not find the length of time he was left unattended to be significant because the fact that he was left unattended at all undermines the suggestion the officers perceived him to be a threat. Tellingly, no officer testified why the frisk was conducted in light of defendant's obvious submission to police commands and without any inquiry about why he was present. 

The Prosecutors' suggestion that the Terry requirements should be relaxed "in the context of the ever-increasing violence in society" is akin to the public policy argument in Ybarra that Terry requirements may be dispensed with in light of the important governmental interest "in effectively controlling traffic in dangerous, hard drugs." That argument was soundly rejected by the Supreme and we reject it as well.

Victor Rosario was represented by Attorneys Joseph M. Mazraani and Jeffrey S. Farmer Esq. of Mazraani & Liguori, LLP.

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