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State v. Carty

March 04, 2002


On certification to the Superior Court, Appellate Division, whose opinion is reported at 332 N.J. Super. 200 (2000).

The opinion of the court was delivered by: Coleman, J.

ON CERTIFICATION TO Appellate Division, Superior Court

Argued October 9, 2001

This consensual search and seizure case presents the novel question whether a request to search a motor vehicle, following a valid stop by the police, requires reasonable and articulable suspicion that a search would reveal evidence of criminal wrongdoing. The Appellate Division held that a request for consent absent reasonable and articulable suspicion violated the New Jersey Constitution and reversed the trial court's denial of defendant's motion to suppress.

We hold that, in order for a consent to search a motor vehicle and its occupants to be valid, law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle. The reasonable and articulable suspicion standard is derived from the New Jersey Constitution and serves the prophylactic purpose of preventing the police from turning routine traffic stops into a fishing expedition for criminal activity unrelated to the lawful stop. Because that standard was not satisfied in this case, the evidence seized must be suppressed.


Defendant was a passenger in a motor vehicle that was operated by his brother, Leroy Coley, on March 27, 1997. The vehicle was stopped by State Trooper Walter Layton for traveling 74 to 75 miles per hour when the posted speed limit on the New Jersey Turnpike at that time was 55 miles per hour. After Coley signed a form consenting to a search of the vehicle, the trooper conducted a pat down of Coley and defendant for the trooper's safety. The frisk of defendant uncovered cocaine. He was arrested immediately and later indicted for third-degree unlawful possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1), and second-degree possession of cocaine with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and -5b(2).

Prior to trial on the indictment, defendant filed a motion pursuant to Rule 3:5-7 to suppress the use of the cocaine in the impending trial. During the suppression hearing, some of the evidence presented by the State conflicted with some evidence presented by defendant. The stop of the vehicle occurred at approximately 5:00 p.m. After stopping the vehicle, Trooper Layton asked Coley to produce his driver's license and the car's registration. He had neither in his possession. Although the vehicle had been rented, there is conflicting evidence whether the rental papers were in the vehicle. The trial court found they were not. Both driver and passenger, however, told the trooper that the vehicle had been rented by their father.

A computer search disclosed that Coley had a valid driver's license and that the vehicle was not stolen. The evidence, however, is also conflicting about when the trooper first became aware of those facts. The trial court did not specifically determine when the trooper first received that information from the dispatcher. That court found that "because there was no proof of ownership of the car or proof of rental status of the vehicle, [the trooper] had the right to search the car to look for those credentials and to see if there was any evidence that the car was stolen."

Although the trial court found that the trooper was justified in searching for Coley's driver's license and the car's registration, it did not explain the trooper's reasons for requesting consent to search the vehicle, the scope of which was not limited to a search for those credentials. After Coley signed the consent, the trooper asked whether he could pat him down for the trooper's safety prior to searching the vehicle. Coley agreed, but the pat-down revealed no incriminating evidence. The trooper then went back to the vehicle and asked defendant to step out so that he could search the vehicle. Defendant also was asked whether the trooper could pat him down for safety reasons because the trooper's back would be to them while searching the vehicle. Defendant also agreed to the pat down. As noted previously, the frisk of defendant uncovered cocaine.

The trial court found that the search was conducted pursuant to the driver's consent and satisfied the standard of voluntary and knowing consent articulated in State v. Johnson, 68 N.J. 349 (1975). The trial court also found that the pat-down reasonably was justified as the least intrusive method of securing Trooper Layton's safety while conducting the consent search of the vehicle. The trial court, therefore, denied the suppression motion. Thereafter, a jury found defendant guilty of second-degree possession of cocaine with intent to distribute and third-degree possession of the cocaine. The court sentenced defendant to a custodial term of six years.

Defendant appealed the denial of his motion to suppress the cocaine, arguing that the pat-down was illegal. In reversing that order, the Appellate Division in a published opinion observed:

[T]he driver had not offered false information regarding his identity. He simply did not have his credentials with him. The trooper certainly had the right to detain him until he was satisfied that he was in fact dealing with a licensed driver in a car that was not stolen. There appears to be no reason at all for the trooper not to have waited, before doing anything further, for confirmation from headquarters of those facts, particularly after they were confirmed by the passenger. Had he done so, there would have been no reason for him not merely to issue the appropriate summonses, let the driver and his passenger go on their way, and be done with the matter. Rather than doing that, however, the trooper, without articulable suspicion that anything else might have been amiss, chose to ask the driver to sign a consent to search form. [State v. Carty, 332 N.J. Super. 200, 205 (App. Div. 2000).]

We granted the State's petition for certification, 165 N.J. 605 (2000), and now affirm.


The State, through the Camden County Prosecutor, argues that the Appellate Division erred by creating a per se rule that a request for consent to search that is unsupported by reasonable suspicion is unconstitutional, and asserts that the ruling is contrary to a long and unbroken line of cases upholding consent as an exception to the warrant requirement of the federal and state constitutions. The State also argues that it was improper to abandon the totality of the circumstances standard in favor of a single factor - that the search took place during a routine traffic stop.

The Attorney General, as amicus curiae, agrees with the prosecutor and argues further that the requirement of reasonable and articulable suspicion as a prerequisite to seeking consent to search will weaken law enforcement efforts without enhancing protection of constitutional rights. The Attorney General maintains that the Appellate Division erred by focusing on the trooper's suspicion rather than on the traditional question of the voluntariness of the consent. Finally, the Attorney General argues that a violation of internal police guidelines is not an adequate reason to enact a new rule of law.

The Public Defender, as amicus curiae, makes two arguments: First, that the Court should hold that Article I, paragraph 7 of the state constitution requires police to have reasonable suspicion that a consent search will yield evidence of illegal activity prior to requesting such consent, and second, that both the federal and state constitutions prohibit the police from asking questions during a Terry stop that do not relate either to the reason for the stop or to another offense about which the officer has obtained reasonable suspicion during the stop.

The Association of Criminal Defense Lawyers (ACDL), as amicus curiae, argues that the standard adopted by the Appellate Division is mandated by Article I, paragraph 7 of the New Jersey Constitution.

The American Civil Liberties Union (ACLU), as amicus curiae, agrees with the ACDL that our state constitution mandates an affirmance of the Appellate Division.


We begin our analysis by focusing on the law controlling consent searches. The starting point is Article I, paragraph 7 of the New Jersey Constitution. Although our search-and-seizure provision is similar to the Fourth Amendment of the United States Constitution, consent searches under the New Jersey Constitution are afforded a higher level of scrutiny. Nearly three decades ago, this Court in State v. Johnson, supra, declined to adopt the federal standard of voluntary consent articulated in Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854 (1973). Instead, we held that under Article I, paragraph 7 of the New Jersey Constitution any consent given by an individual to a police officer to conduct a warrantless search must be given knowingly and voluntarily. Johnson, supra, 68 N.J. at 354. The burden is on the State to show that the individual giving consent knew that he or she "had a choice in the matter." Ibid.

In response to Johnson, the New Jersey State Police developed a "Consent to Search" form. That form authorizes a trooper to conduct a "complete search" of a motor vehicle or other premises as described by the officer on the face of the form. The form also states:

I further authorize the above member of the New Jersey State Police to remove and search any letters, documents, papers, materials, or other property which is considered pertinent to the investigation, provided that I am subsequently given a receipt for anything which is removed.

I have knowingly and voluntarily given my consent to the search described above.

I have been advised by [the investigating officer] and fully understand that I have the right to refuse giving my consent to search.

I have been further advised that I may withdraw my consent at any time during the search.

The form is filled out by the officer to include, among other things, the officer's name and a description of the vehicle to be searched. It then is presented to the consentee for his or her signature.

Because Johnson involved the search of a residence, this is the first time that this Court has addressed what the standard should be for an officer seeking consent to search incident to a lawful stop of a motor vehicle for violation of traffic laws. A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Locurto, 157 N.J. 463, 470 (1999). Once a lawful stop is made, the subsequent reasonable detention of the occupants of the motor vehicle constitutes a seizure. Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996); State v. Dickey, 152 N.J. 468, 475 (1998). Such reasonable seizures, however, are permissible.

Although stopping a car and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment, the governmental interest in investigating an officer's reasonable suspicion, based on specific and articulable facts, may outweigh the Fourth Amendment interest of the driver and passengers in remaining secure from the intrusion. [United States v. Hensley, 469 U.S. 221, 226, 105 S. Ct. 675, 679, 83 L. Ed. 2d 604 (1985)(emphasis added)(citing Prouse, supra, 440 U.S. at 653-55, 99 S. Ct. at 1395-97, 59 L. Ed. 2d at ___).]

The fact that the motorist already has been detained at the point when an officer asks for consent to search is not dispositive of whether a suspicionless search should be allowed to continue. Because the motorist cannot leave the area before the search is completed, unless it is terminated earlier, the detention associated with roadside searches is unlike a "mere field interrogation" where an officer may question an individual "without grounds for suspicion." State v. Maryland, 167 N.J. 471, 483 (2001) (quoting State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973)). Roadside consent searches ...

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