Can my car be searched if I am out of the car, arrested, handcuffed, and placed in the back of a police cruiser?

State v. Houston   New Jersey Appellate Division Decision December 12, 2017

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Can my car be searched if I am out of the car, arrested, handcuffed, and placed in the back of a trooper/police cruiser?  Why can the police search my car?  The questions can be answered simply based on New Jersey’s existing case law. The bigger issue is how far can the search go??  The facts are as follows:

New Jersey State Police (NJSP) Detective Joseph Palach and Trooper Frederick Peters were on patrol in Newark when they spotted defendant’s car, a Cadillac SUV, make a turn into the parking lot of a housing complex without signaling. As the car turned, Palach observed the windows were tinted. Defendant parked the car in a legal parking spot, and the officers conducted a motor vehicle stop for the observed motor vehicle infraction.

Palach approached the car and observed defendant was not wearing a seat belt. He also detected the smell of burnt marijuana once defendant lowered the window. The officers removed defendant from the car and placed him under arrest after a search of his person produced five prescription Endocet pills, along with a large sum of money. Defendant was placed between the officers’ car and his own, and Palach began to search the vehicle’s passenger compartment, as other officers, including NJSP Detective Christopher Durning, arrived.  Palach found a “half-smoked marijuana cigarette” in the ashtray and detected the odor of raw marijuana. He opened a backpack that was on the back seat, behind the driver’s seat, and found two Tupperware containers of marijuana, a digital scale and a plastic bag containing other smaller plastic bags. Palach also found a bottle in the backpack containing seventy-one Endocet pills similar in nature to those found on defendant.

In addition, two baby bottles were found in the “driver’s side front seat pocket sleeve.” Defendant admitted these contained promethazine with codeine, a prescription legend drug. Defendant acknowledged that he “paid for” the vehicle, although it was legally owned by his sister.

After noticing the dashboard air vents “did not line up” properly, Palach “popped out [the cover] from the dashboard” and shone his flashlight into the space. He found a .40 caliber handgun. Meanwhile, Durning was in the rear area of the vehicle. He removed plastic paneling above the rear wheel well and found two packages of marijuana in a “void.” The officers took defendant from the scene and his car was towed.

The motion judge found Palach’s credibility “waned on multiple occasions on cross-examination,” and that his testimony was “less credible.” She found that Durning was credible, and she discounted Peters’ testimony because he denied seeing the critical elements of the search while he guarded defendant.

In this case, given the above facts, the court ruled, “the “vehicle stop was lawful” because the officers “observed motor vehicle violations.” See, e.g., State v. Scriven, 226 N.J. 20, 33-34 (2016) (“[O]rdinarily, a police officer must have a reasonable and articulable suspicion that the driver of a vehicle . . . is committing a motor-vehicle violation or a criminal or disorderly persons offense to justify a stop.”). She then concluded the officers had probable cause to arrest defendant based upon the smell of marijuana. See, e.g., State v. Walker, 213 N.J. 281, 290 (2013) (alteration in original) (“New Jersey courts have recognized that the smell of marijuana itself constitutes probable cause that a criminal offense ha[s] been committed and that additional contraband might be present.”) (quoting State v. Nishina, 175 N.J. 502, 515-16 (2003)).

The judge found that Palach’s seizure of the burnt marijuana cigarette in the ashtray was “valid pursuant to a search incident to arrest,” and because it was in “plain view.””

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