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United States v. Perry

United States District Court, D. New Jersey

January 9, 2015


Page 525

Nelson Thayer, Deputy U.S. Attorney, U.S. ATTORNEY'S OFFICE, Camden, N.J.

For Defendant: Ralph A. Jacobs, Esq., JACOBS, SINGER, KIVITZ & HERMAN LLC, Haddonfield, N.J.


Page 526



This motion to suppress evidence presents the question whether this federal court is bound by the decision of a judge of the Superior Court of New Jersey granting the defendant's motion to suppress a handgun found concealed in his vehicle after a warrantless search on December 22, 2012. The Superior Court found that the warrantless search and seizure of the vehicle was unlawful under the automobile exception under New Jersey law because exigent circumstances were not present, pursuant to State v. Pena-Flores, 198 N.J. 6, 28, 965 A.2d 114 (2009). The federal automobile exception, on the other hand, requires a lawful stop of the vehicle and probable cause to believe that evidence of a crime may be found in the vehicle, both as found by the Superior Court, but federal law does not require proof of exigent circumstances to permit a valid automobile search. For the reasons now discussed, the Court holds that the United States is not bound by the Superior Court's suppression decision under the circumstances of this case, as it is a separate sovereign, not in privity with the state prosecutor in the Superior Court case, and thus not within the Bartkus exception to the dual sovereignty doctrine recognized in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) and its progeny. On the merits, the Court holds that this warrantless search was within the federal automobile exception and that the motion to suppress evidence seized from the vehicle should be denied.


On August 13, 2014, the Grand Jury sitting in Camden, New Jersey returned a one Count Indictment, charging Defendant Terron Perry (hereinafter, " Defendant" ) with felony possession of a firearm in violation of 18 U.S.C. § 922(g)(1) on June 7, 2012. The charge specifically emanates from a June 7, 2012 encounter at an Auto Zone store in Camden, at which time Defendant allegedly fired multiple shots at another individual. A police officer, advised of the gunshots, observed three males fleeing the scene in a dark Chevrolet Impala, and thereafter placed the three individuals, including Defendant, in handcuffs.

Page 527

The officer proceeded to conduct a search of the Impala, with the individuals' consent, but recovered no firearms, contraband, or any other evidence of a crime. A later inspection of the Auto Zone's store front and abutting structure, however, resulted in the recovery of .410 gauge shotgun shells and .45 caliber rounds.

In the pending motion, Defendant moves to suppress evidence obtained in connection with an unrelated search of the same Impala driven by Defendant Terron Perry on December 22, 2012. [Docket Item 25.] In the early morning of December 22, 2012, Officer Evette Truitt (hereinafter, " Officer Truitt" ) heard multiple gunshots while on patrol in Camden.[1] Officer Truitt then observed the dark Impala driving recklessly, and nearly striking her patrol car as it drove away from the area of the gun shots at high speeds. As a result of the Impala's tinted windows and high-speed driving, Officer Truitt pursued the Impala--momentarily losing sight of it--for the purposes of conducting a traffic stop. In light of the circumstances, Officer Truitt informed others of the incident by radio, prompting Officer Raul Beltran (hereinafter, " Officer Beltran" ), among others, to converge upon the location of the ultimate stop. Upon locating the Impala, Officer Truitt conducted a traffic stop and, along with Officer Beltran, detained Defendant and Assan Perry, the Impala's two occupants. Subsequent to the individuals' detention, Officer Beltran conducted a sweep of the passenger compartment of the Impala, during which he discovered a hidden compartment adjacent to the steering column. Inside of the hidden compartment, Officer Beltran recovered a Ruger P345 .45 caliber semi-automatic handgun, a handgun of a type consistent with the .45 caliber rounds located after the June 7, 2012 shooting.

The Government now seeks to introduce the evidence derived from the December 22, 2012 search, namely, the hidden compartment containing a handgun, in order to answer the " inevitable question" concerning why the June 7, 2012 search of the Impala resulted in the recovery of no weapons. (Gov't's Br. at 4.) The Government specifically argues that the evidence obtained in the December 22, 2012 search " directly prove[s]" the charged offense to the extent that it creates the inference that, on June 7, 2012, Defendant did indeed possess a firearm, but that he had " secreted it" in the hidden compartment in the Impala. (Id.)

Defendant, however, insists that the introduction of such evidence must be suppressed because this federal prosecution, principally reliant upon evidence of the search, constitutes an impermissible second litigation of the same issue following a state court decision suppressing its introduction. (Def.'s Br. at 3-4.) In the alternative, and in addition, Defendant asserts that the evidence obtained in the December 22, 2012 search must be suppressed because such search constituted an unlawful warrantless search. (Def.'s Br. at 3-4.)

The principal issues before the Court are whether this federal prosecution contravenes a sparsely-developed exception to the dual sovereignty doctrine; and, if not, whether Officer Beltran conducted a lawful, warrantless search of the Impala on December 22, 2012.

Page 528

For the reasons explained below, the Court finds the December 22, 2012 search lawful under the automobile exception to the warrant requirement of the Fourth Amendment. Defendants' motion will, accordingly, be denied.[2]


Because the pending motion concerns in part the posture of the parallel state prosecution, the Court will set forth certain salient procedural circumstances of the related state court proceeding.

On March 26, 2013, a state grand jury returned an Indictment charging Defendant and Assan Perry with a bevy of weapons and assault-based offenses arising out of the December 22, 2012 incident. (Gov't's Br. at 3.) The defendants moved to suppress the evidence of the search on the grounds that the warrantless search violated the federal and state constitutions.

Following a suppression hearing on March 14, 2014, the state court found the December 22, 2012 search unlawful under the State of New Jersey's jurisprudence concerning protective searches and the automobile exception, because the defendants' detained status at the time of search deprived the circumstances of the exigency required for a warrantless search under New Jersey law pursuant to State v. Pena-Flores,198 N.J. 6, 965 A.2d 114 (2009). (See Attach. A [Docket Item 28-1], 17:5-26:8.) The state court, accordingly, granted the defendants' ...

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