COUNSEL'S COLUMN

By Frank Gennaro
Deputy Attorney General
New Jersey Division of Criminal Justice

NEW JERSEY SUPREME COURT UPHOLDS CAR STOP AND SEARCH

In January 2006, the Supreme Court of New Jersey overruled the Appellate Division and reinstated a conviction which resulted from a car stop and search. In State v. Birkenmeier, the Court was confronted with a situation in which a confidential informant told police that the defendant, whom he knew by name, would be leaving his home at a specified address, at a certain time with a described laundry bag containing a large quantity of marijuana.

Police observed the defendant leaving the specified address at the specified time with the described bag. They initiated a stop of the vehicle based upon the facts known to them. The police officer who stopped the vehicle smelled a strong aroma of marijuana and observed the laundry bag inside the vehicle. A search of the car revealed the bag to contain 35 pounds of marijuana. The driver then admitted that he had an additional 20 pounds of marijuana at his residence. He twice gave verbal consent to search his residence and the additional 20 pounds of marijuana was recovered by police.

The Trial Court denied defendant’s motion to suppress the seized evidence. During the motion, defense counsel conceded the legality of the stop, but argued that police should have obtained a search warrant before searching the car. On appeal, the Appellate Division reversed, ruling that police lacked reasonable suspicion for the car stop. The appellate court also held that the State had not demonstrated the C/I’s basis of knowledge.

The Supreme Court of New Jersey overruled the Appellate Division and reinstated the conviction. The Court ruled that the Appellate Division was incorrect in requiring a showing of the C/I’s basis of knowledge, as that factor goes to a finding of probable cause and not to a determination of the existence of a reasonable suspicion for a vehicle stop. The Court went on to hold that the C/I information, corroborated by the officers’ observations provided the required reasonable suspicion for the stop. Once stopped, the observation of the laundry bag and the smell of marijuana provided probable cause for the search under the automobile exception.

The defendant also contested the search of defendant’s residence, arguing a lack of probable cause for that search. The Supreme Court upheld the consent search of defendant’s residence, pointing out that consent searches are not based upon probable cause. Although this search was upheld on a verbal consent, the better practice still is to get the consent in writing.