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Search of Vehicle illegal

THE OFFICERS HAD

NO REASONABLE SUSPICION TO STOP DEFENDANTS' VEHICLE FOR

AN ALLEGED SMELL OF UNBURNED MARIJUANA

The State has represented variously that the arresting officers' attention was drawn to a smell of un-burnt marijuana emanating from defendants' moving vehicle, or else that said vehicle had tinted windows.

Whatever the primary basis for the stop, the claim concerning a smell of marijuana is not credible. It is not credible that the officers, while driving around Newark in their own moving vehicle, were somehow able to smell un-burned marijuana and thereby pinpoint defendants' own moving vehicle as the specific the source of that same un-burned marijuana odor.

In any event, after the officers searched both defendants and the vehicle, no marijuana of any kind, un-burned or burned, was found.

Altogether, the State has alleged a highly-implausible basis for suspecting the presence of contraband it ultimately never found. Any suspicion the officers had about marijuana therefore lacked a reasonable basis, and therefore the stop of the vehicle on that ground was unwarranted.

POLICE OFFICERS MUST HAVE A REASONABLE AND

ARTICULABLE SUSPICION FOR A MOTOR VEHICLE VIOLATION STOP

Likewise, the alternate alleged basis for stopping the vehicle – a window obstruction concerning window tint – is similarly flawed.

A police officer is justified in stopping a motor vehicle for a motor vehicle violation only when he has a reasonable and articulable suspicion that the driver has committed a specific motor vehicle offense. State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997).

To satisfy the articulable and reasonable suspicion standard, the State need not prove that a motor vehicle violation occurred. State v. Locurto, 157 N.J. 463, 470 (1999). However, the officer must have had a reasonable belief that such violation occurred. State v. Cohen, 347 N.J. Super. 375, 381 (App. Div. 2002).

The State and the officers have not articulated a specific motor vehicle violation, only that the officers were investigating “tinted windows" generally. Not all tinted windows are illegal. The State has therefore not alleged, with the required, articulable specificity, that the vehicle's front or front-side windows were illegally tinted such as would constitute an obstructed view. Nor does the evidence show anywhere that the officers articulated such specificity in some reasonable belief that front or front-side windows were illegally tinted.

Such specificity in the State's representations is essential because having rear or rear-side tinted windows is simply not a violation of N.J.S.A. Chapter 39. In fact, having rear or rear-side tinted windows is not a motor vehicle violation at all.

Moreover, without having articulated a violation of motor vehicle law with the requisite articulable specificity, the Court should additionally question the officers' reasonable belief that a motor vehicle violation required a stop and investigation of defendants' vehicle. Compare State v. Ortiz, No. A-4026-08T4, 11 (N.J. Super., 2009).

The State's own account casts doubt on the reasonableness of the officers' belief that any violation of the motor vehicle window obstruction law occurred given that the State admits that the vehicle's windows were at least partially down. Even assuming, arguendo, the vehicle's front windows were tinted, it is not at all clear how the officers were able to form a reasonable suspicion about window tinting when the windows were not wholly visible.

Even more importantly, since the relevant motor vehicle statutes and regulations pertain to obstructions to the driver's view, the fact that the windows were at least partially down means the driver had a wholly unobstructed view out of the car, a view not even impeded by factory-spec glass. The officers therefore had no reasonable basis for stopping the vehicle for having an obstructed view when the windows were as unobstructed as any window can possibly be, i.e., open.

CONSTITUTIONALLY VALID SEARCHES REQUIRE

PROBABLE CAUSE AND A WARRANT

Given that there was no basis for stopping the vehicle in the first place, it must now be noted that the federal and New Jersey constitutions both require probable cause and a warrant to conduct a constitutionally -valid search. U.S. Const. Amend. IV; N.J. Const. Art. 1, Par. 7. “Probable cause is said to be a reasonable basis for the 'belief' that a crime has been or is being committed." State v. Burnett, 42 N.J. 377 (1964). The search warrant requirement “is not a mere formality but is a great constitutional principle embraced by free men and expressed in substantially identical language in both our federal and state constitutions." State v. Macri, 39 N.J. 250, 255 (1963).

EVIDENCE OBTAINED

DURING AN UNCONSTITUTIONAL SEARCH

MUST BE SUPPRESSED

“Since 1961, when the United States Supreme Court decided Mapp v. Ohio, 367 U.S. 643 . . . New Jersey and her sister states have been compelled by the federal constitution to exclude from the State's case-in-chief evidence obtained in violation of the fourth amendment." State v. Novembrino, 105 N.J. 95, 99 (1987).

THE OFFICERS' SEARCH OF DEFENDANTS AND THEIR VEHICLE

WAS NOT BASED ON PROBABLE CAUSE

As discussed above, the officers' search was not even based on reasonable suspicion, much less probable cause.

HAD THERE BEEN PROBABLE CAUSE, THE OFFICERS' SEARCH OF DEFENDANTS AND THEIR VEHICLE WOULD HAVE

REQUIRED A TELEPHONIC WARRANT

Warrantless searches are presumed invalid unless an exception applies. State v. Pena-Flores, 198 N.J. 6, 18 (2009). Defendants were not arrested prior to the search, so the search was not incident to a lawful arrest. Rather, the defendants were asked to leave the vehicle based on an unreasonable stop, based on either the suspicion of a smell of non-existent marijuana, or an obstructed view out of an open window, whereupon other evidence allegedly spilled out of defendants' laps. Therefore, the issue is whether there was an exigency as such might justify a warrantless search, which must be determined on a case-by-case basis. State v. Dunlap, 185 N.J. 543, 549 (2006).

A Court should consider the following factors when making a case-by-case determination of exigency: 1) the time of day; 2) location of the stop; 3) the unfolding of events supporting probable cause; 3) the ratio of officers to suspects; 4) the existence of confederates who might tamper with the vehicle; 5) the existence of passers-by who might tamper with the vehicle; and 6) whether the car could be safely left un-guarded. State v. Thomas J. Shannon, Docket No. A-2549-08T4, 8 (N.J. Super. 2011).

Here, an unconstitutional stop lacking probable cause occurred at only 10PM. The stop did not occur in an area creating an exigent circumstance. There were at least two officers present. There were no known confederates, and the State did not allege passers-by or other factors that would mean the car could not be safely left un-guarded. The State has presented no reason why a telephonic warrant could not have been obtained within a sufficiently short period of time, and it seems the officers could have, and should have sought one, see Shannon, supra, at 10, had they had probable cause. As discussed above, they did not.

THE SEARCH WAS ADDITIONALLY FLAWED IN THAT THE OFFICERS IMPROPERLY OPENED THE VEHICLE DOOR WITHOUT WARNING

Officers may ask vehicle occupants to step out of the car pursuant to a valid traffic stop. Pennsylvania v. Mimms, 434 U.S. 106 (1977); See also State v. Wanczyk, 201 N.J. Super. 258, 264; State v. Nittolo, 194 N.J. Super. 344, 346 (App. Div. 1984). In addition to there being no valid stop in this case, one of the officers suddenly opened the driver's door. Suddenly opening the door is unconstitutional. State v. Woodson, 236 N.J. Super. 537 (1989).

CONCLUSION

The key paradox behind the State's version of events is that no marijuana was ever recovered, even after full search of the vehicle and the defendants. In both the grand jury and in the incident report, Detective Lovejoy writes that he smelled a strong aroma of unburned marijuana coming from the vehicle, and based on prior experience and training, the odor of unburned marijuana is distinct and different than the odor of burnt marijuana. Be that as it may, it is altogether disingenuous for the State to simultaneously claim that 1) a detective can smell unburned marijuana emanating from a moving vehicle while seated in another moving vehicle; 2) that the driver window and passenger windows were down, yet illegal tint was not only somehow visible but also obstructing the driver's view; 3) and finally that officers after stopping the vehicle again smelled unburned marijuana that did not exist. Maybe the real answer is that the detectives conducted an illegal profiling stop.

The face of the State's allegations and the evidence presented so far lacks plausibility as to the alleged odor of un-burned marijuana, and also lacks sufficient specificity to convince anyone not involved in the incident that a motor vehicle violation occurred so as to support the constitutionality of a stop. There can be no basis thereafter for ordering the occupants out of the car and seizing such evidence as they may have had in their possession. Such evidence must now be excluded.

For the foregoing reasons and authorities cited in support thereof, the defendant respectfully requests that the defendants’ Motion to Suppress Evidence seized without a Warrant be granted.

motion was granted and all evidence was supress and case was dismissed Agu 2, 2011.

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