COUNSEL'S COLUMN

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

SUPREME COURT EXTENDS THE SCOPE OF
THE STATE v. CARTY RULING

           In State v. Carty, the Supreme Court of New Jersey ruled that, after a motor vehicle stop, police may not ask a motorist for consent to search the vehicle without reasonable articulable suspicion that criminal conduct is afoot.
           As reported in a previously published Counsel’s Column, in 2006, the Appellate Division, in State v. Elders, applied the Carty principle to the search of a disabled car on the New Jersey Turnpike. The Appellate panel ruled that Carty applied even though the police had not initiated the vehicle stop. However, the Appellate Division had upheld the consent search, finding that the police had a reasonable articulable suspicion of criminality. The Supreme Court likewise ruled that the Carty limitation on consent searches was applicable to the situation in the Elders case, but concluded that the search was improper.
           In September 2004, a State trooper encountered two vehicles stopped on the Turnpike at approximately 3:00am. 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 told police that they were coming from three different locations in New York City. 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 had reversed that decision, holding that the facts confronting the Trooper were sufficient to constitute a reasonable articulable suspicion.
           Before the Supreme Court, the State contended that the Carty restriction on consent searches should not be applied to the scenario encountered in the Elders case, because the Elders vehicle was not the subject of a motor vehicle stop, but rather was a disabled vehicle. The Court disagreed, ruling that the driver of a disabled vehicle is in the same position as the driver of a vehicle stopped for a motor vehicle violation when police seek consent to search the vehicle in absence of reasonable articulable suspicion that a crime is being committed.
           The Court found that the Appellate Division had given insufficient deference to the findings of the trial judge. The Court also determined that the police officers were primarily engaged in a criminal investigation, rather than with providing assistance to the motorists from the outset of the encounter. The Supreme Court concluded that the nervousness of the motorists and the conflicting statements given to the police did not amount to a reasonable articulable suspicion of criminality. The Court also concluded that the consent to search form signed by Leach had not been obtained voluntarily. Accordingly, the Court reversed the Appellate Division and suppressed the evidence.