One Case On Roadside Searches
STATE v. CARTY, 170 N.J. 632
The NJ Supreme court has stated that roadside searches are more akin to an investigatory stop rather than a “mere field interrogation,” thus requiring reasonable suspicion. The Court reasoned that a motorist is not free to leave until the search is completed. 170 NJ 640, modified on other grounds. 174 NJ 351 (2002). Even the knowledge of the right to refuse consent will be insufficient to validate a consent search if the officer did not have a reasonable and articulable suspicion of criminal activity beyond the reason for the initial stop. In State v. Carty, 170 N.J. 632, 645-46, modified on other grounds. 174 N.J. 351 (2002), the Court held that the New Jersey Constitution requires the police to have a reasonable and articulable suspicion that a search will produce evidence of criminal activity. (See p 363-64)
Police must be discouraged from turning routine traffic stops into fishing expeditions for criminal activity. 170 NJ 632, 635. An otherwise valid consent search of a vehicle will be invalidated if it is a product of an illegitimate stop or detention of the motor vehicle. As long as the police have a reasonable and articulable suspicion to justify the stop and a reasonable and articulable suspicion to believe the vehicle contains evidence of a crime, a knowing, voluntary consent obtained thereafter will be valid. Carty, 170 NJ 632, 647, modified on other grounds. 174 NJ 351 (2002).
In Carty, the defendant was a passenger in a car pulled over for speeding. The Supreme Court agreed with the trial court that the stop was justified. When neither the driver not the passenger could produce appropriate documentation or personal identification, the officer asked for consent to search the car, even though he had no articulable suspicion that he would find evidence of a crime. The Court held that the officer had no justification to ask for the consent: “for a consent to search a motor vehicle and its occupants to be valid, law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search.” Id. at 635. The Court reasoned that the standard was consistent with the explicit policy of the New Jersey State Police, id. at 647, and, because it likened roadside consent searches to investigatory stops involving detention, found that such a standard comported with the showing traditionally required for such stops, id. at 640. To the extent that Stae v. Abreu, 257 N.J.super. 549 (App. Div. 1992), State v. Allen, 254 N.J.Super. 62, 66 (App. Div. 1992), State v. Chapman, 332 N.J.Super. 452, 467 (App. Div. 2000), and State v. Oberlton, 262 N.J.super. 204 (Law Div. 1992) hold otherwise, they should be deemed overruled by Carty. See also state v. Yanovsky, 340 N.J.Super. 1 (App. Div. 2001), following the Appellate Division decision in State v. Carty, 332 N.J.Super. 200 (App. Div. 2000), aff’d 170 N.J. 632 (2002), which was affirmed by the Supreme Court.
STATE v. CARTY, 332 NJ SUPER 200
Both the Appellate Division and the Supreme Court concluded that the NJ Constitution requires articulable suspicion that such search will yield evidence of criminal activity before the officer may seek the suspect’s consent. A consensual search for driving credential and other identification may “not legitimately go beyond the normal credential-storing areas of the vehicle.” The failure of the driver to produce credentials after a routine traffic stop does not justify a search of the car unless other suspicious circumstances are present.
The exigency, fear for his own safety, proffered by the Trooper to justify a pat-down search of the defendants before searching the passenger compartment of the vehicle “was in effect of his own making,” since he could have either called for back-up to observe the defendants while he searched or secured the 2 defendants in his patrol car. An arrest for a routine motor vehicle offense will not support a search of the vehicle incident to that arrest.
In Carty, a State trooper had obtained the driver’s consent to search the vehicle after the driver failed to produce proper credentials and the defendant-passenger “appeared nervous.” The officer had no other articulable suspicion that the search would yield evidence of criminal activity. When the defendant passenger exited the vehicle, the officer conducted a pat-down, claiming that he feared for his safety. The officer alleged that he did not want to turn his back on the two occupants of the car while they were unobserved. The pat-down search revealed a packet of cocaine in the passenger’s pocket. The court held that the initial consent was improperly obtained, thus invalidating the subsequent pat-down. In addition, the court found that there was no evidence in the record suggesting that the officer actually had a reasonable belief that the officer’s safety was threatened. Specifically, the court observed that the officer had already turned his back on the suspects twice during the course of the stop. In affirming, the Supreme Court stated an appearance of nervousness is not sufficient grounds for seeking consent to search the vehicle.