Overturned: Suppression of Evidence Found in The Trunk of a Car After Officers Failed to Completely Search the Passenger Area of the Vehicle

State v. Joshua McMillian

Appellate Docket No.: A-3899-19

Decided July 19, 2022

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished decision, the Appellate Division of New Jersey overturned a trial court’s suppression of evidence found in the trunk of a car after officers failed to completely search the passenger area of the vehicle.

In McMillian, While on patrol, Edison police officer Joseph DePasquale observed a car that was crossing slightly over the lane into oncoming traffic and then moving back into its own lane. DePasquale and his partner, Steven Nappe, followed the car into a parking lot and then conducted a motor vehicle stop. The interaction was recorded on the officers’ body cameras.

DePasquale approached the driver’s side of the car and requested the driver’s license––the driver of the vehicle was identified as defendant. Nappe went to the passenger’s side. Defendant told police he was not the owner of the vehicle and gave the registered owner’s name. DePasquale stated he observed “small pieces of marijuana shake scattered throughout the back seat of the vehicle” and “rolling papers underneath the driver’s seat.” He also detected the odor of raw marijuana coming out of the car.

DePasquale asked defendant to get out of the vehicle and then searched him. Defendant told the officer that he had smoked marijuana an hour earlier at a friend’s house and he was wearing the same clothes. DePasquale replied, “I can smell it coming off your clothes” and “because of that I’m gonna search you a little better and then I’m gonna search the car.” While searching defendant, DePasquale found rolling papers on his person.

After searching defendant, DePasquale and Parenty searched the vehicle. After entering the passenger’s front side of the vehicle to begin the search, Parenty stated, “It smells in here too.”

DePasquale searched the front and back of the car on the driver’s side, while Parenty searched the front passenger side. However, Parenty never searched the back seat on the passenger’s side or even opened the back passenger side door. After DePasquale pushed up the rear seat arm rest, his camera showed very small pieces of marijuana “shake” in the back seat. A box of rolling papers is also seen in the center console.

DePasquale testified that, “throughout the search of the vehicle, as [he] went towards the rear of the vehicle, once [he] folded down the armrest, that’s when [he] was able to detect the odor of marijuana to be at its strongest point throughout the entire stop.”

After opening the trunk and lifting the liner, the officers found a “sandwich bag containing marijuana, one grinder, one tied off bag containing cocaine, . . . . three bricks of heroin broken down into five bundles each, and an additional four bundles of heroin totaling 190 bags,” a cutting agent for cocaine and heroin, and a “Smith and Wesson [forty] caliber handgun with an extended magazine which was loaded with [twenty] hollow point bullets.” The officers then arrested defendant.

Defendant was charged in an indictment with: fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1(a); two counts of third-degree possession of a Controlled Dangerous Substance (CDS), N.J.S.A. 2C:35- 10(a)(1); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); two counts of fourth-degree possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3; second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); fourth-degree prohibited weapons and devices—large capacity ammunition magazine, N.J.S.A. 2C:39-3(j); fourth-degree prohibited weapon and devices—hollow nose/dum-dum bullets, N.J.S.A. 2C:39-3(f)(1); and second-degree possession of a firearm while engaged in CDS distribution activity, N.J.S.A. 2C:39-4.1(a). He was charged in a subsequent indictment with two second-degree certain persons not to have weapon, N.J.S.A. 2C:39-7(b)(1).

Defendant moved to suppress the evidence found in the trunk. The Court found that the odor of raw marijuana emanating from the vehicle was enough for officers to search both the passenger area and trunk, as officers testified that different amounts of marijuana can have different scents, thus the suppression motion was denied.

Defendant appealed and the Appellate Division reversed, finding that because officers failed to search the rear passenger seat and did not indicate that they could not pinpoint the source of the odor, officers could not then search the trunk of the vehicle.

This case is important to understand there are three types of interactions with law enforcement, each involving different constitutional implications depending on the event’s impact on an individual’s freedom to leave the scene. First, a “field inquiry is essentially a voluntary encounter between the police and a member of the public in which the police ask questions and do not compel an individual to answer.” State v. Rosario, 229 N.J. 263, 271 (2017). The individual is free to leave, therefore field inquiries do not require a well-grounded suspicion of criminal activity before commencement. Id. at 271-72; see also Elders, 192 N.J. at 246. Second, an investigatory stop or detention, sometimes referred to as a Terry stop, involves a temporary seizure that restricts a person’s movement. A Terry stop implicates a constitutional requirement that there be “‘specific and articulable facts which, taken together with rational inferences from those facts,’ give rise to a reasonable suspicion of criminal activity.” Elders, 192 N.J. at 247 (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)); see also Rosario, 229 N.J. at 272. Third, an arrest requires “probable cause and generally [are] supported by an arrest warrant or by demonstration of grounds that would have justified one.” Rosario, 229 N.J. at 272. Here, probable cause was found with the odor of marijuana (something that is no longer allowed since its legalization) but the search had to be reasonable in scope. Because the search was not complete in the area that officers could see and smell marijuana, they could not extend the search to the trunk.

If you have been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.

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 Barnegat Township, Barnegat Light Borough, Bay Head Borough, Beach Haven Borough, Beachwood Borough, Berkeley Township, Brick Township, Eagleswood Township, Harvey Cedars Borough, Island Heights Borough, Jackson Township, Lacey Township, Lakehurst Borough, Lakewood Township, Lavallette Borough, Little Egg Harbor Township, Long Beach Township, Manchester Township, Mantoloking Borough, Ocean Gate Borough, Ocean Township, Pine Beach Borough, Plumsted Township, Point Pleasant Beach Borough, Point Pleasant Borough, Seaside Heights Borough, Seaside Park Borough, Ship Bottom Borough, South Toms River Borough, Surf City Borough, Stafford Township, Toms River Township, and Tuckerton Borough.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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