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…And then the dogs show up.


…And then the

iCrowdNewswire   Feb 26, 2020  1:00 PM ET

We’ve all watched episodes of “Cops” where they pull someone over and a conversation ensues that inevitably leads to a vehicle search for drugs. Or perhaps you are more inclined to the YouTube video binge of “unlawful stops” or “civilian schools police officer infringing on his rights.” That may be as close to reality you can get without being at the other end of the police flashlight in your face. But what are the rules for such police encounters? What are the police actually allowed to do? How long can they hold you before it becomes a violation of your constitutional rights? Here’s a real life case I resolved that will shed some light on some of these questions.

            It’s a Saturday night and my client, let’s call her Jessica, is at the bar with her boyfriend; let’s call him Leo. *Names are changed for confidentiality* Leo decides to go to Quick Check to pick up some snacks and borrows Jessica’s car. On his way back, he’s on his cell-phone and a police officer pulls him over. *Side note: stop driving and texting, guys; there’s no reason for it. Also, this is not a story about an evil police officer that abuses his power and treats my client with malice. Actually, this was one of the most respectful interactions between a client and a police officer I have seen. I watched all the body cam footage. *end side note

 Anyway, the police officer, doing his job, approaches the vehicle and asks for all of the documents while letting Leo know he got pulled over for using his phone. While he’s speaking to Leo, he instantly smells “raw” marijuana. When asked about it, Leo instantly throws Jessica under the bus and states it is her car; she smokes marijuana, and he doesn’t do that. As the police officer checks his IDs, more police officers show up for backup. It’s a small town and no one has anything else to do on a Saturday night.

Jessica is at a bar down the street and decides to show up at the scene to make sure Leo (and her car) are ok. Well, surprise surprise, Leo has outstanding warrants for his arrest. They’re just bench warrants for not paying a parking ticket, but, he has to get arrested to process the warrant. The police officers explained he would need to pay the fines and he’d be released that same night. It sucks, but that’s the way it works. It was what was happening in the background that is the subject of this blog.

While Leo is being arrested, the police officers decide to search the car for the marijuana they smelled, which they can do as they have probable cause to do so. Jessica denies anything being in her car but they continue to search. At this point, the stop has been going on for 30 minutes. The cops search EVERYWHERE. They search her purse, bags, the Nikes in the trunk, the glove compartment, the middle console, etc. EVERYWHERE. They found nothing. The smell is gone and they decide the search is over. They close all the doors again and the stop winds down. Well, as Leo is being processed in the police car, he remembers that he forgot his wallet in the middle console. At this point, it’s been about 40 minutes since the initial stop.  The reason for the stop is over; the cops searched and found nothing, and they were about to leave. One officer decides to go back into the car to get Leo’s wallet for him, and the smell of marijuana is back and in full force. They talk it over and decide to call the K-9 unit.

30 more minutes go by before the dog shows up. At this point it’s been a full HOUR since the initial stop. The K-9 does its job and finds a tiny burnt roach (NOT raw) in Jessica’s purse, where the police had already searched. Jessica gets arrested for possession of marijuana under 50 grams and has to go to court. This was pretty serious because Jessica was a lawful permanent resident and could get deported for a drug offense. Thankfully, I was able to get Jessica’s case dismissed. Want to know why or how? Well here it is:

The United States Supreme Court and the New Jersey Supreme Court take a person’s 4th amendment constitutional rights very seriously. Everyone has 4th amendment rights, not just U.S. citizens.

The 4th amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This means you and your property are protected from being searched or taken from you unless the government has probable cause of wrongdoing.

            In a recent case, State of New Jersey v. Dwight Nelson, 237 N.J. 540 (2019) the NJ Supreme Court piggybacked a decision it made in 2017 stating, “An officer may not conduct a canine sniff in a manner that prolongs a traffic stop beyond the time required to complete the stop’s mission, unless he possesses reasonable and articulable suspicion to do so. . ..In other words, in the absence of such suspicion, an officer may not add time to the stop.” Ibid. State v. Dunbar, 229 N.J. 521, 540 (2017).  In State v. Nelson, the Court took it a step further and held even if there was reasonable and articulable suspicion to conduct the stop and an independent reasonable and articulable suspicion to perform a drug sniff of the car, making the defendant wait 39 minutes for the K-9 unit to arrive was unreasonable because it added time to the stop.  In other words, police cannot call a K-9 unit to the scene of the stop and have a person wait for the unit to arrive after all other stop-related activities have finished.

            It was clear here: The police were done with their stop and their search. They could not make Jessica wait for the K-9 another 20-30 minutes after they already finished searching her car and found nothing. The police are not allowed a second bite at the apple, so to speak. The facts were on Jessica’s side and we had a good judge and prosecutor that knew the law. It also helped that the interaction between Jessica and the police was as cordial as an arrest could get. Long story short, the police have rules they have to follow. Those rules come straight out of the U.S. constitution.

            If you ever find yourself at the other end of that flashlight in your face and get caught with drugs in your car after you get pulled over, call the Law Office of Eric Mark to represent you in your case. We review all the facts and circumstances to protect your constitutional rights. If you’re not a US citizen, you need an attorney that can take it a step further and protect your ability to remain in the United States. We are those attorneys.

 

By: Cristina R. D’Amato, Esq.

 

 

 



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Keywords:    New Jersey Criminal Lawyers

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