COUNSEL'S COLUMN

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

APPELLATE DIVISION UPHOLDS ROADSIDE CONSENT SEARCH

In June 2006, the Appellate Division reversed a trial court decision suppressing evidence seized during the search of a disabled car on the New Jersey Turnpike.

In September 2004, a State Trooper encountered two vehicles stopped on the Turnpike at 3 a.m. The vehicles had six occupants. One of the cars was disabled, and two of the occupants were in the process of attempting to make repairs.

When the Trooper arrived on the scene, he observed that the disabled vehicle’s gas tank was loose. The occupants were quite nervous, and, although the car was broken down, they did not want assistance. When separately questioned, the occupants gave three different stories about where they had been. Neither of the vehicles was registered to any of the individuals present on the scene.

Suspect Leach, who was in control of the vehicles, gave an oral consent to search one of them. When he initially declined to sign a Consent form, the Trooper told him that he would have to summon a drug-sniffing dog. Leach then signed the consent. The search revealed about a pound of cocaine secreted under the hood of the vehicle.

On the above facts, the trial court suppressed the evidence, ruling that the police lacked a reasonable articulable suspicion on which to seek consent to search.

The Appellate Division reversed that decision, holding that the facts confronting the Trooper were sufficient to constitute a reasonable articulable suspicion. Defendants also argued that the consent to search had been coerced by the Trooper’s statement that the refusal to sign the form would require the police to summon a drug dog. The Appellate Division rejected this argument, finding that the Trooper had simply informed the suspect that he intended to do that which he had a legal right to do. Therefore, the Court decided that the statement had been a fair prediction of events, and not a deceptive threat. Moreover, in light of the fact that the car was disabled, and that the occupants had been given the opportunity to make repairs, the Court held that the calling of a drug dog would not have unduly prolonged the encounter.

The Appellate panel reversed the trial court’s suppression order. Almost two years after the fact, common sense finally prevailed.