COPS NEED MORE THAN A 'HUNCH' TO SEARCH LAWFULLY STOPPED CAR

Outlook For 2004 Case Dim

NEWARK -- Police must have a reasonable suspicion of criminal
wrongdoing before asking for permission to search a disabled car, the
state Supreme Court ruled Monday.

The 6-1 ruling by New Jersey's highest court extends protections
against a warrantless search of a vehicle and its occupants in cases
where the vehicle wasn't stopped by police.

The decision means that marijuana and cocaine found by a state
trooper under the hood of a car in 2004 cannot be used as evidence
against its occupants, who were charged with drug trafficking.

The case now returns to a trial judge, who had reached the same
conclusions as the Supreme Court. An appellate panel of judges
determined the evidence should be allowed.

The Supreme Court decision broadens a 2002 ruling in which it found
an officer cannot seek consent to search a lawfully stopped vehicle
unless the officer has "a reasonable and articulable suspicion" that
criminal activity is involved.

The majority found that there was credible evidence to support a
finding by the trial judge that no such suspicion existed.

"The driver of a disabled car facing police officers whose offer of
assistance quickly turns into a "fishing expedition' based on a
"hunch' that criminal activity is afoot is subject to no less
compulsion to accede to a consent search than the driver subject to a
typical motor-vehicle stop," Justice Barry T. Albin wrote for the majority.

The lone dissenter was Justice Robert A. Rivera-Soto, who objected to
the decision based on how much weight he thought should be given to
the trial judge's decision.

No decision has yet been made on whether to drop the drug-trafficking
charges, but the outlook for continuing the case is dim, said
Assistant Middlesex County Prosecutor Marcia L. Silva.

"Without the drugs that were seized from the vehicle, any other
statements or facts that arose from that are clearly suppressed,"
Silva said. "It doesn't really leave me much with the case."

Silva said the ruling was disappointing, asserting, "It inhibits the
police even further."

The decision was welcomed by the state Public Defender's Office,
which handled the appeal for the six people charged in the case.

"I think people should be glad that if they are (broken down), the
police will try to help them, not sit around and try to figure out if
they are drug dealers," Assistant Public Defender Mark H. Friedman said.

The case began about 2:50 a.m. Sept. 17, 2004, when troopers came
upon a Lincoln Town Car and Honda Accord on the shoulder of the New
Jersey Turnpike in Edison. The Lincoln's gasoline tank had come loose.

The cars carried six people who were returning to North Carolina from
New York City. Two men were working on the tank, two people were
sitting on a guardrail, and two were sleeping in the Honda. State
Police Sgt. Ronald Klem and Trooper Sean O'Connor said several of the
people appeared nervous. Klem wondered if drugs were hidden beneath the car.

After individuals gave different reasons why they had been in New
York, and because none of the six owned the cars, the troopers got
consent to search from one person. After he balked at signing the
form, O'Connor said they would wait until a drug-sniffing dog
arrived. A half-hour later, the person signed the form.

O'Connor found over a pound of cocaine and less than two ounces of
marijuana in the Lincoln's engine compartment. The trooper also found
$8,000 in cash on one person, and $3,000 on another.

State Superior Court Judge Frederick P. DeVesa determined that the
drugs and money stemmed from an unconstitutional search and could not
be admitted as evidence. The search stemmed from "nothing more than a hunch."