In this archive episode, Dennis discusses what happens when a passenger is in possession of prohibited narcotics or has a warrant for arrest. Recorded on 12/09/2018.

State of NJ v Wilson 2003 (NJ Supreme Court ruling on whether a passenger discovered to have narcotics on their person was enough to return to a vehicle and conduct a warrantless search.)

This case was flawed for several reasons. However, the NJ supreme court determined that there would be no bright line rule barring this from occurring and that it would be determined on a case by case basis.

It was flawed on not taking the extra steps to explain why the officer believed that there might have been more in the vehicle. This single action would have saved the case and will save cases like it in the future.

Remember my golden rule: When in doubt ask for consent, call for a K9, or apply for a search warrant. Following this steps in order are not only critical to saving your case but are listed in and order that makes the most sense.

Case Quoted:

In avoiding bright-line pronouncements in this area of law, we continue to believe that “courts must consider the totality of the circumstances, without focusing exclusively on any one factor, in considering whether probable cause has been established.” Sullivan, supra, 169 N.J. at 216, 777 A.2d at 67; see also Holland, supra, 176 N.J. at 362, 823 A.2d at 49 (observing that “[o]ur case law generally has eschewed per se rules” in search-and-seizure context).

Those or similar suspicious circumstances are absent in the case before us. In that respect, the Appellate Division concluded correctly that the following factors militated against a finding of probable cause:

The … vehicle committed no motor vehicle violation. There was apparently nothing suspicious about the car itself. The car stopped on its own initiative, not at police request. The occupants exited the car on their own volition. The driver had proper credentials. There was no contraband in plain view and no indication that either occupant of the vehicle had recently ingested drugs. The occupants did not attempt to flee and, indeed, it appears neither defendant nor [the driver] even knew the police were present when they stepped out of the car. There was no testimony that the warrants outstanding against defendant were for drug violations or any form of violent conduct. Until the point of defendant’s arrest the two occupants demonstrated no furtive conduct. When defendant was asked to put his hands out he complied. The only incriminating conduct was that drugs dropped from defendant’s clothing when he was being handcuffed. No drugs were found on the ground between the … car and where defendant was being handcuffed. There was no testimony that the amount of drugs on defendant’s person caused a suspicion that other drugs would be present in the vehicle. There was no testimony that the neighborhood was an area of high drug activity.

[Wilson, supra, 354 N.J.Super. at 555, 808 A.2d at 554.]

The State argues forcefully that the quantity of marijuana and cocaine found on defendant’s person alone provided sufficient probable cause to believe that the automobile contained additional drugs. Although that argument has some appeal to us in concept, the State submitted insufficient evidence to support it at the suppression hearing. As noted, one officer indicated that he had opened the passenger door “to see if there [were] any other drugs or [drug] paraphernalia in [defendant’s] immediate area there.” Aside from that bare statement, the government did not proffer testimony explaining with any degree of specificity why it suspected that such items would be found in the car.

For instance, there was no testimony that the drugs found on defendant were possessed or packaged in a fashion that furnished the officers with a well-grounded suspicion that defendant was about to engage in illegal distribution, using the car to conceal or transport additional contraband. It was not enough to describe the quantity of drugs, their location


*1093 on defendant’s person, and defendant’s proximity to the car. The officers needed to articulate more fully why those facts provided the threshold level of suspicion required to justify their search of the car itself. In the same vein, there was no specific testimony that, if possessed solely for personal consumption, the drugs discovered on defendant’s person raised a fair probability that drug paraphernalia would be contained in the vehicle.

We reiterate that the warrantless search in this case is presumed invalid and that the government bore the burden of creating an evidentiary record necessary to uphold its conduct. In such a setting we decline to infer proofs that were not presented expressly before the trial court. Although we can infer or take judicial notice of certain facts in appropriate circumstances, see, e.g., Nishina, supra, 175 N.J. at 507, 816 A.2d at 156 (taking notice of fact that school identified at suppression hearing served students through fourth grade), we cannot fill in gaps in the record to supply the requisite proofs required of the State under constitutional standards. Our analysis is intended to serve not as criticism of the State’s handling of the suppression motion, but merely as guidance to trial courts in future cases.,31