When is there Consent to Search?

Silence Cannot be Considered Consent to Search Bag’s Contents in New Jersey Traffic Stop

A recent case arising out of New Jersey’s Appellate Court overturned the trial court’s conviction based on evidence obtained without a warrant from a car which the defendant was a backseat passenger in. The car was searched with the oral consent of the driver, but not that of the defendant. This case provides insight into what the New Jersey Court deem proper criminal procedure in Ocean County and Monmouth County, New Jersey.

An East Orange Patrol officer responded to a call in August 2008 about a dispute between a grandson and grandfather. Upon arrival, the officer observed a male matching the grandson’s description jump into a vehicle with a bag. The officer pulled over the car which had three occupants, 1 of which was the defendant in the rear seat. After back up police arrived on scene, the three occupants were separated for questioning. The driver allegedly provided oral and written consent to the police to search the car. Interestingly, the state was unable to provide any evidence of the driver’s written consent. The police then went into the car without a warrant and recovered a bag containing a handgun, marijuana, and a scale. At trial the judge found the defendant guilty of various drug related crimes. The judge agreed that the defendant was not free to leave while in the back of the police squad car but that there was no evidence of coercion of the driver’s consent.

The Appellate Court overturned the trial court’s conviction citing concerns regarding the ability of a 3rd party, driver, to consent to a search of a container unless he has common authority or an otherwise sufficient relationship to the container. Since the police officer saw defendant jump into the car with the bag, she had no reason to believe the bag belonged to the driver. In addition, the court noted that the defendant’s silence at the scene cannot be considered to constitute consent to search the bag. The court cited case law from New Jersey’s Supreme Court that held it is generally improper to equate a defendant’s silence with a knowing waiver of the constitutional right to object to a search where a defendant is unaware of his right to refuse such consent.

Call Villani & DeLuca for Search and Seizure Answers

If you have been charged with a DWI or DUI you need to call an experienced New Jersey criminal defense attorney to protect your rights. Partner, Carmine R. Villani, Esq. has a wealth of experience in New Jersey criminal defense having served as municipal prosecutor and municipal public defender in numerous municipalities in Ocean County and Monmouth County throughout his 20+ year legal career. Contact the experienced NJ criminal defense attorneys of Villani & DeLuca, P.C. for a free initial consultation. Call 732-965-3350 today!

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