As Long as Officers Are Lawfully Present and There Is Evidence of a Crime That Is Immediately Apparent to Officers, They Can Seize the Evidence Without a Warrant

State v. Marese Washington, Jr.

Appellate Docket No.: A-0733-22

Decided April 5, 2023

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent published opinion, the Appellate Division of New Jersey reversed a granting of a motion to suppress after finding that police lawfully seized defendant’s vehicle in plain view after it was immediately apparent the damage to the car related to evidence of a homicide.

In State v. Washington, just after midnight on July 24, 2020, State Police responded to a single car crash involving a BMW on State Highway 55 in Millville. The front end of the BMW sustained heavy damage during the crash; the driver’s side “appear[ed] to have been struck by gunfire.” Police recovered five spent .40 caliber shell casings in the roadway. Kesean Bey, the driver and sole occupant of the BMW, sustained a gunshot wound to his forehead and later died from his injuries.

Detectives assigned to the State Police Major Crimes Unit investigated the shooting. Surveillance video obtained from a Wawa convenience store in Millville depicted Bey’s BMW leaving the parking lot around 12:10 a.m. followed by a white Kia Optima. The cars were headed in the direction of State Highway 55. One of the Kia’s headlights was unlit, and a front license plate was not affixed to the car. Additional surveillance video recovered from a Best Buy located near a State Highway 55 onramp depicted Bey’s car followed by the Kia.

Viewing the public portion of that user’s Facebook page, police found a photograph depicting defendant standing in front of a white Kia Optima without a front license plate.

From surveillance footage, detectives identified a decal affixed to the Kia indicating it was purchased from Autotec, a car dealership located in Vineland. On July 28, 2020, Autotec’s manager told Hughes that Jones had returned to the dealership in June 2020, claiming the Kia had sustained front-end damage when her sister “struck a deer.”

At some point on July 28, 2020, after they left the dealership, Hughes and Spadafora responded to Jones’s apartment complex. Hughes testified he observed a 2019 white Kia Optima parked in the parking lot of Jones’s apartment building. No special access was required to enter the parking lot, which “was . . . open to the public.” As such, “anybody could go into the parking lot and make observations.” Upon observing the vehicle, Hughes noticed “the temporary reg[istration]”; “the decals on the vehicle”; and “damage to the front passenger side.” After conferring with other detectives assigned to the case, the decision was made “to impound the vehicle as evidence.”

That same day, Nocito authored the affidavit that accompanied a warrant to search the Kia. After obtaining the warrant, a search of the Kia’s interior revealed: two .40 caliber shell casings that matched the shell casings recovered on the roadway near Bey’s car; lead that was “consistent with a firearm being discharged[] within the vehicle”.

Cumberland County grand jury returned a three-count indictment against defendant, charging him with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:11-3(a); first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (a)(2); and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).

Defendant moved to suppress and the Court granted the motion and found police had adequate opportunity to request a warrant because this was not a spontaneous situation.

The State appealed and the Appellate Division overturned the Court’s decision, finding that the Court confused a search warrant requirement for contraband in a car vs. seizing the entire car itself when the vehicle is evidence of a crime in plain view. Because the Judge correctly found that the police met the plain view requirement when they found the vehicle that matched the one in surveillance, they were justified to tow the vehicle without a search warrant.

This case is important to understand New Jersey’s plain view exception to a warrant requirement. The evidence found in plain view no longer has to be found spontaneously. Instead, as long as officers are lawfully present and there is evidence of a crime that is immediately apparent to officers, they can seize the evidence without a warrant. In this case, because the vehicle itself was evidence of the homicide and nothing inside the car, as soon as officers came across the car in a public parking lot the plain view exception to a warrant was applicable and the police could tow the vehicle.

If you or someone you know have been charged with any indictable offense or disorderly persons, or you have questions regarding warrantless searches, plain view exception, reasonable suspicion, or probable cause, contact the experienced attorney at Hark & Hark to ensure you are adequately defended.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.