State of NJ v. Billy Flagg: Upheld Denial of Motion to Suppress – Dec 20, 2023

State of New Jersey v. Billy Flagg

Docket No. A-3682-21

Decided December 20, 2023

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Court of New Jersey decided defendant’s appeal from a March 2022 Law Division order denying his motion to suppress a firearm seized during a warrantless search of his vehicle.

On May 15, 2021, an officer was on patrol when he observed defendant’s vehicle speeding. By maintaining his speed behind defendant’s vehicle, the officer believed the driver was travelling at sixty miles per hour in a 50 mile per hour zone. The officer then initiated a motor vehicle stop. After verbally receiving defendant’s personal identifying information, the officer determined that he had an outstanding warrant for failing to appear in court. Due to this outstanding warrant, defendant was arrested. After the defendant’s person was searched incident to arrest, the officer recovered twenty-eight wax folds containing suspected controlled dangerous substances (“CDS”) and approximately $2,654 in cash.

At the hearing to suppress evidence, the officer further testified that he detected the odor of alcohol emanating off of defendant’s breath and observed that his movements were slow, and his speech was continually slow and slurred. The officer also observed defendant’s eyes were bloodshot and droopy. As a result, the officer then secured the defendant in the back of his police car while he and another officer searched defendant’s car for the source of intoxicants for driving while intoxicated. The officers subsequently located a handgun in the center console of the vehicle. On cross-examination, however, the officer admitted that he did not detect the odor of alcohol on defendant’s breath when defendant first lowered his window to speak with him at the commencement of the motor vehicle stop. While watching body worn camera footage, the officer acknowledged defendant speech was not slurred and he was not staggering as he stated he observed. The officer also did not instruct the defendant to perform field sobriety tests on scene.

After conducting an evidentiary hearing on defendant’s motion to suppress, the trial court denied the motion in an oral opinion and entered an order on March 21, 2022. Defendant then plead to second-degree unlawful possession of a handgun and fourth-degree certain persons not to possess ammunition. In exchange for his plea of guilty, the State agreed to recommend a six-year prison sentence with three and one-half years of parole ineligibility on the unlawful possession charge and a concurrent eighteen-month prison sentence on the certain persons charge. Defendant was sentenced in June 2022 and then subsequently appealed.

On appeal, defendant contended that the sole basis for searching his vehicle was the officer’s belief he had probable cause to search for the source of defendant’s intoxicant. Defendant argued that since the officer only possessed a “mere hunch” that defendant was intoxicated, the search was unlawful because it was not supported by probable cause, and the handgun discovered pursuant to the unlawful search should be suppressed.

The State argued that because the officer had probable cause arising out of unforeseeable and spontaneous circumstances, the automobile exception to the warrant requirement applies. The State contended that the search of defendant’s vehicle was unforeseeable and spontaneous under the standard set in State v. Witt, 223 N.J. 409, 448-50 (2015) because (1) the defendant was initially pulled over for a speeding infraction; (2) defendant gave his name without any credentials and the officer only then learned about the active warrant; (3) defendant was subsequently arrested and searched incident to arrest, revealing wax folds of suspected CDS and $2,654 in cash; and (4) the officer testified he smelled alcohol on defendant’s breath, his speech was “slow and slurred,” and his eyes were “bloodshot.”

Ultimately, the Appellate Court determined that there was no basis to disturb the court’s conclusions and affirmed its decision. The court articulated that the probable cause to search defendant’s vehicle clearly arose from unforeseeable and spontaneous circumstances since defendant’s vehicle was properly stopped, and he was appropriately arrested, leading to the officer detecting an odor of alcohol and the subsequent discovery of suspected CDS.  The court further stated that neither the smell of alcohol nor the discovery of the suspected CDS would be foreseeable in the context of a motor vehicle stop for speeding, and it was objectively reasonable that the subsequent search would reveal evidence of a crime.

At Hark & Hark, we are experienced attorneys who represent clients in Superior Court for issues like the previously discussed case pertaining to motions to suppress evidence seized as the result of an unlawful warrantless search. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, 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.