Can the police search my car based on the smell of marijuana
Should I sign the consent search form and agree to let the police search my car with my daughter there only because the police told me they were going to get a warrant anyway? The cop said “it would be a lot easier if you just allowed me to search the car, We’re going to apply for a search warrant…, that is going to prolong the inevitable “. Is this allowed?
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
In this case the police pulled over a motor vehicle for a failure to use a blinker to change lanes. When the officer walked up to the car he smelled burnt marijuana. The officer then told the defendant to step out of the vehicle, handcuffed him, called for back up. The officer then told the driver he was going to search the car and asked for consent. The driver said no you cannot and I’m not going to sign a consent form. The officer then told the driver, “I know but at this time we’re going to apply for a search warrant OK and that is kinda going to prolong the inevitable.”!! At this point in time the defendant agreed and signed the consent form and allow the police to search his car.
The policeman searched the vehicle once the driver said yes and this was captured on the polices body camera and in the police vehicle. The search produced marijuana and a weapon. At a motion to suppress the trial court found, based on the totality of the circumstances, the defendant consented to the search and the questions, statements by the police officer did not amount to coercion. The court ruled the driver ultimately “knowing and voluntary waiver and giving consent” is supported by sufficient credible evidence and the trial court correctly deny defendant’s motion to suppress.
The key to this case is the 1965 decision in State v King, 44 NJ 346 ( 1965). In that case the Supreme Court outlined five factors to determine if consent is coerced: that the consent was made by an individual already arrested, consent obtained the but a denial of guilt, the consent was obtained only after the accused had refused the initial consent, the consent was given were subsequent such results in a seizure of contraband which the defendant must’ve known would’ve been discovered, and consent was given where the defendant was handcuffed. Factors potential effecting involving voluntariness of the consent include consent was given where the accused had reason to believe the police would find no contraband and the defendant admitted his guilt before consent, and the defendant affirmatively assisted the police.
The King court emphasize that these factors where guideposts for the trial judge in arriving at his conclusion to determine voluntariness and consent. This court added on the inclusion of the “totality of the particular circumstances“ of each case depending upon its own facts.
The court ultimately quickly concluded that credible evidence supported the trial judges determination that the defendant consent was voluntary despite the presence of several potential coercive King factors. The court also included the technological advances permitted by the MVR and body camera enable it to better evaluate the manner in which the police officer obtained in this case and reaffirmed the king court’s “guidepost” directives.
Jeffrey S. Hark, Esq.