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State v. Kennedy

Decided: March 25, 1991.


On appeal from Superior Court of New Jersey, Law Division, Warren County.

Pressler, Deighan and Baime. The opinion of the court was delivered by Baime, J.A.D.


Defendants' automobile was stopped for speeding on Interstate Route 80. The resulting search of the vehicle disclosed a substantial quantity of controlled dangerous substances. Following a jury trial, defendants were convicted of first degree possession of cocaine with intent to distribute (N.J.S.A. 2C:35-5b(1)) and possession of marijuana (N.J.S.A. 2C:35-10a(4)).

Although additional arguments are advanced, defendants' principal contention on appeal is that the Law Division erred by denying their pretrial motion to obtain internal State Police records allegedly supportive of their claim of discriminatory enforcement of New Jersey's traffic laws. They assert that while the stop of their vehicle for a traffic violation was objectively reasonable, it was actually prompted by an officially sanctioned or de facto State Police policy of targeting members

of minority groups. Defendants argue that the information they seek is relevant to their claim of invidious, institutional racism.

We hold that a defendant must establish a colorable basis for a claim of selective enforcement in order to obtain pretrial discovery of relevant items in the exclusive control of a government agency. We also conclude that the statistical survey submitted by defendants, although deficient in many particulars, was sufficient to establish their entitlement to the materials requested, and that the Law Division mistakenly exercised its discretion in denying defendants' motion.


We briefly summarize the facts pertinent to defendants' claim of selective enforcement.*fn1 On October 14, 1987, State Troopers Darrell Albonico and Raymond Lasso were conducting stationary radar monitoring on the westbound lanes of Interstate Route 80 in Knowlton Township, Warren County. At approximately 3:00 p.m., the officers observed a black, late model Lincoln with Ohio license plates travelling at a high rate of speed. It is undisputed, and in fact conceded by defendants' attorneys, that the automobile was clocked at 69 m.p.h., well in excess of the applicable speed limit.

Trooper Albonico approached the Lincoln from the driver's side. Initially, the officer observed only the driver, defendant Underwood. At some point, however, Albonico noticed defendant Kennedy seated on the passenger side, leaning toward the floor area. Underwood was asked for his driver's credentials, but was unable to produce a license. According to Trooper Albonico, he then peered through the window and observed a

clear plastic bag on the floorboard, containing brown vegetation, a suspected marijuana "roach" and a packet of "E-Z Wider rolling paper." The officer ordered both defendants to exit from the vehicle and, after retrieving the bag, placed them under arrest.

Trooper Albonico asked defendants if they would consent to a search of the automobile. According to Albonico, he told them that they had the right not to consent. Both defendants verbally agreed to permit the search, noting that the automobile did not belong to them. Using his keys, defendant Underwood opened the trunk of the automobile. Trooper Lasso noticed the corner of a plastic bag protruding from the area near the spare tire. The bag contained a "white, powdery substance." After defendants were handcuffed and placed in the patrol car, Trooper Lasso conducted a more thorough search of the Lincoln. The search disclosed a cellular telephone belonging to defendant Kennedy. The registration, which was found in the glove compartment, listed Ford Motor Credit Co. as the owner of the automobile and T.O.A. Investments, as the lessee.

Following the return of the indictment, defendants, along with four other individuals whose criminal charges stemmed from arrests for traffic violations on Route 80, filed a consolidated motion, seeking (1) State Police logs, radio reports and tapes of all stops during the weeks of their respective arrests, (2) materials containing State Police training procedures, including videotaped sessions and manuals, (3) all training materials in the Elite Drug Interdiction Unit, and (4) the names of all instructors of the New Jersey State Troopers "who have been employed as such within the last five years." Defendants, who are non-caucasians, claimed that their arrests, even if objectively reasonable, were tainted by a long-standing, systematic practice of invidious discrimination against minorities reflected in the selective enforcement of New Jersey's traffic laws. They asserted that the materials requested would support their claim.

Accompanying defendants' motion was a study prepared by the Warren County Public Defender's Office which disclosed that in 43 of its cases involving motor vehicle stops on Route 80 in a three year period, 70% related to African-American occupants, 7% Hispanics and 23% caucasians. It was said that these figures were disproportionate to the Warren County Public Defender's caseload within the last eight months which was comprised of 76% caucasians and 17% African-Americans. In addition, an affidavit filed by a staff member of the American Civil Liberties Union (ACLU), alleged that she had received "numerous complaints" from minority citizens claiming that they had been stopped for "minor traffic violations" and subjected to intrusive searches.

The Law Division denied defendants' motion, finding that the Public Defender's statistical study fell short of establishing a colorable claim of selective enforcement. The court stressed that defendants had failed to present evidence tending to show the existence of the essential elements of the defense and that the materials in the State's possession would be probative of a claim of discriminatory enforcement. Defendants were found guilty of the charges following a lengthy trial and were later sentenced to substantial prison terms.

Defendants filed separate appeals. We thereafter granted the motions of the Attorney General and the ACLU to appear amicus curiae. We now consolidate defendants' ...

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