Observation Of a Hand-To-Hand Transaction Alone Is Insufficient to Have a Reasonable and Articulable Suspicion of a CDS Transaction
Appellate Docket No.: A-3410-19
Decided January 10, 2022
Submitted by New Jersey New Jersey Criminal Lawyer, Jeffrey Hark
In a recent unpublished opinion, the Appellate Division of New Jersey reversed a denial of a motion to suppress after officers simply observed a hand to hand transaction without seeing what was exchanged and conducted a motor vehicle stop with no other traffic violations or observations.
In State v. Gibson, during a pretrial suppression hearing, the trial judge found credible a police officer who testified about his surveillance of a residence on Kennedy Boulevard in Jersey City on October 26, 2018. The officer observed a man, later identified as defendant, exit the residence and enter a Chevy Impala, which the officer observed as it came to a stop on Linden Avenue. The officer continued to watch as defendant exited his Impala, approached a Buick, and handed the Buick’s driver “small objects in exchange for money.” The officer acknowledged he did not know what defendant handed the Buick’s driver, but he was certain he saw the Buick’s driver hand money to defendant. When the two vehicles drove off, the officer directed his colleagues to stop the Buick because he believed he had just witnessed a narcotics transaction.
Other officers stopped the Buick and approached the driver, who was holding in his hand forty-nine bags of heroin. Armed with that information, other officers stopped the Impala and arrested defendant, who was in possession of $521 in cash but no drugs.
Defendant moved to suppress the evidence found in the vehicle. The judge denied the motion, explaining that the totality of the circumstances have officers a reasonable suspicion to stop the Buick.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to one count of third-degree possession of a controlled dangerous substance. N.J.S.A. 2C:35-10(a)(1). He was sentenced to a three-year prison term and the other charges were dismissed.
Defendant appealed, arguing police lacked a reasonable suspicion to stop the Buick. The Appellate Division agreed, reversing the denial of the motion to suppress. The Court found that the officer saw a hand-to-hand transaction and believed from what he saw that he had witnessed a narcotics transaction based on his twelve years of experience in the field – was insufficient because the officer testified that he was unable to observe what it was that defendant gave the Buick’s driver and there was no other evidence to support an inference that defendant or the Buick driver were engaged in a drug transaction or other criminal activity. There was also no independent basis to conduct the traffic stop.
This case is important to understand what is required and lawful to conduct an investigatory stop, followed by an arrest. To conduct a lawful investigatory stop, also know as a Terry stop, officers need a reasonable and articulable suspicion that a crime is being committed. Here, the officer’s observation of a hand to hand transaction alone was insufficient to have a reasonable and articulable suspicion defendant was involved with the CDS transaction and to conduct a motor vehicle stop. Had a traffic violation occurred, officers could have stopped the car.
Next, to effectuate the arrest, detectives need probable cause. Probable cause is well-grounded suspicion that defendant is committing a crime. Here, again, officers also lacked probable cause because there was no witnessing of exactly what was exchanged. Instead, it was more of a hunch based on the officer’s experience.
If you or someone you know have been charged with any indictable offense or disorderly persons involving a search and/or questioning of police, contact the experienced attorney at Hark & Hark to ensure you are adequately defended, otherwise you could have negative impacts on your case like the defendant above.
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